This fall, an estimated 52% of U.S. students started school virtually and 25% attended in person five days a week, as the COVID-19 pandemic continued to spread. The remaining 19% of students had some form of hybrid schooling, combining online and in-person learning. These estimates are based on aggregated school and community calendars nationwide by Burbio, a calendar application company.
Because of disagreement on the required conditions for a safe return to in-person instruction, teachers led a national protest in August over a return to the classroom in communities with a greater than 5% positive COVID-19 testing rate or a transmission rate greater than 1%, or both. Family views shifted as well, with only 36% of K-12 parents saying in August that they preferred a return to full-time in-person instruction, down from 56% in early June, according to a Gallup poll.
With schools concerned about their liability as students returned to the classroom, and with no federal action to protect schools from virus-related legal actions, some state legislatures have considered measures to provide them with state-level protection.
Updated guidance from the Centers for Disease Control and Prevention on school reopening stated that in-person instruction should commence unless there was “substantial, uncontrolled transmission” of the virus, in which case schools were encouraged to work with local health officials to determine whether the schools should remain open. However, the guidance did not include specific metrics to determine whether a spread was substantial or uncontrolled. States developed their own guidelines and metrics on school reopening, but in some cases the guidance changed weekly as officials learned more about the virus and how it can spread within school buildings, making it difficult for districts to keep up.
Given the pressure to reopen schools, some administrators were concerned that general liability insurance, purchased by school districts individually or with other districts, would not include COVID-19-related claims. Some insurers explicitly said they would not cover pandemic-related expenses, and some plans never included communicable diseases in the coverage. Now that most states have experienced COVID-19 outbreaks among those students who attend classes in person full time or in a hybrid model, the question of liability has become all the more pressing.
There also is confusion around the current “standard of care,” the steps districts are reasonably expected to take to ensure the health and safety of students and staff. Because the standards regarding COVID-19 change as scientists learn more about the disease and its transmission, schools are concerned about being held liable in court later for failing to implement standards that are evolving with the pandemic.
In July, the National School Boards Association, the American Association of School Administrators and the School Superintendents Association wrote a letter to congressional leadership asking for legislation to provide schools with “targeted liability coverage” during the pandemic. The organizations said schools were concerned that, “despite their best efforts to follow applicable guidelines, they will be forced to defend against an onslaught of lawsuits.”
Legislative Responses to COVID-19 Liability
With federal action failing to materialize, several legislatures considered measures to provide state-level protection. California Assembly Bill 1384, for example, would require individuals and organizations to adhere to federal, state and local legal and regulatory COVID-19 guidelines to receive liability protection. This is one of the few bills attempting to define what constitutes negligence. The following four states have introduced bills exempting employers from liability for civil damages regarding COVID-19:
Louisiana: H.B. 826 (enacted) exempts persons, state or local government, or political subdivisions from liability for any civil damages for injury or death resulting from or related to exposure to COVID-19 in the course of or through the performance of the person’s, government’s or political subdivision’s business operations unless certain conditions are met.
Tennessee: H.B. 8001 (enacted) exempts a public institution of higher education from cause of action for any loss, damage, injury or death arising from COVID-19, as defined in state code, unless the claimant proves by clear and convincing evidence that the loss, damage, injury or death was proximately caused by an act or omission of the institution or its employee or agent constituting gross negligence or willful misconduct.
California: A.B. 1384 (pending) would require local educational agencies to establish policies and procedures for operating programs and facilities in a manner consistent with applicable federal, state, and local legal and regulatory COVID-19-related requirements and guidelines. Exempts a local educational agency, and its officers or employees, that meet these requirements from monetary liability and damages for injury relating to COVID-19 infection, any condition in existence because of the COVID-19 pandemic, or any act or omission by the local educational agency, its officers or its employees in response to the COVID-19 pandemic, as provided.
Alabama: S.B. 330 (failed—adjourned) would have provided civil immunity for business entities, health care providers, educational entities, churches, governmental entities, and cultural institutions, as well as individuals associated with these entities, from certain damages claimed by individuals who allege that they contracted or were exposed to coronavirus, during a declared state of emergency.
For more information on the legislative response to COVID-19 and back-to-school guidelines, please see the following resources:
Patrick Lyons is an early education policy specialist in NCSL’s Education Program.