Preparing for the Liabilities of Reopening During COVID-19

The pandemic has put higher ed institutions at an increased risk of liability and lawsuits. Here's how to navigate the legal considerations of reopening.

• By Mark Pittman
• 12/09/20

Amid the fallout from the COVID-19 pandemic, dozens of colleges and universities around the country are facing class action lawsuits from students asserting breach of contract and tort claims based upon the institutions' transitions to online-only classes. The suits allege that the students were guaranteed an in-person education and that the online experience was inferior to the on-campus experience, thus justifying a refund of tuition and fees.

This may only be the beginning of the lawsuits schools will face. Not only do recurring outbreaks of COVID-19 put schools at risk for more tuition and fees lawsuits, but other liabilities have increased significantly as well: Universities are struggling to implement appropriate contact tracing methods both on and off-campus, alert students and staff of potential exposures, and provide increased health services while still adhering to HIPAA and other regulations.

Fortunately, there are steps universities can take to lower their risk.

1) Assess your institution's unique risks.

There are many factors that contribute to liability. First, schools will need to assess state and federal guidelines when it comes to their COVID-19 plan and response. For instance, more than 35 states have instituted mask mandates in public. Others have implemented mask mandates in specific situations, like riding public transportation or entering the grocery store. Whatever the case may be, schools must abide by all local and federal guidelines for safely re-opening.

Beyond following basic state and federal guidelines, schools should assess the unique risks associated with their specific institution. Commuter campuses carry increased exposure risks as students and staff members travel to and from campus, and therefore should have a system in place to track exposures and notify students of potential outbreaks. Fully remote schools carry less risk of exposure, but more risk of disgruntled students who are paying full tuition for online learning. Colleges with students living on campus face additional challenges in providing space for students to self-isolate in the event of an outbreak.

Universities should be constantly assessing their unique liabilities and searching for the best possible solutions.

2) Take steps to maintain the health and safety of students and staff as a top priority.

Providing for students' health and safety is always important, but during a pandemic it is critical. Students and staff members with pre-existing conditions — those who are at increased risk of complications if exposed to COVID-19 — should be given special consideration when it comes to maintaining their safety. Vulnerable students and staff members should be given options for how to participate in their education safely.

A lot of schools do not have robust telehealth systems in place, but now is the time to implement them. Telehealth provides more students the opportunity to seek medical help at a distance, which reduces the possibility of infected students coming into contact with students who are seeking care for other mental health concerns or physical illnesses.

For instance, one company called Healthfully is working with schools to manage, monitor, and minimize COVID-19 on campus through a secure app and automatic contact tracing services. With 80 percent of schools having dedicated contact tracers on campus, we expect to see more schools sign up for these kinds of services as the school year goes on.

3) Take reasonable measures to protect students and maintain quality of education.

Ultimately, universities that can prove they have taken as many reasonable measures as possible to prevent outbreaks, maintain quality of education, and protect students and staff members in the event of an outbreak, will have the best odds when fighting a lawsuit.

Some of these reasonable measures include providing personal protective equipment when local policies mandate it, implementing a fast, thorough contact tracing program, providing quarantine zones, and providing access to confidential health services, among others. For instance, Sacred Heart University has converted a 34-room guest house at the former Connecticut headquarters of General Electric to quarantine students. When the University of South Carolina ran out of space at a dormitory for quarantined students, it started sending them to hotel-like rooms it had rented at a training center for prosecutors.

Whether your quarantine zone is in a dorm, a hotel, or a training center, taking reasonable measures to prevent the spread of COVID-19 is paramount.

Whatever reasonable measures your school decides to take, pay close attention to local mandates as well as federal guidance when determining which steps to take. The liabilities schools face as they reopen may seem insurmountable, but proving your school has taken reasonable measures and precautions to protect students and faculty will go a long way in reducing your risk. The above comments are meant to guide the conversation across our country today and should not be construed as legal advice.