We are fortunate to act as counsel for independent schools and no more so than during a time when the whole world is trying to manage and cope with the coronavirus pandemic. The underlying concern for our clients who are calling on us, the lawyers, is what does the law say? What am I legally required to do? What can I ask and not ask? Will our school be liable if a student or employee becomes ill with COVID-19 on our watch? Taking a step back—for just a minute, in the midst of this health crisis—these questions all belie uncertainty about what the standard of care is during this stressful moment.
The Law. The standard of care is certainly embodied in applicable laws: for example, the Americans with Disabilities Act will dictate what kinds of questions schools can ask students and employees about their health; the Fair Labor Standards Act and state wage and sick leave laws provide guidance on whether schools have to pay employees if they cannot work due to quarantine; and local public health departments may now require schools to report to them any community member who is diagnosed with COVID-19.
Peer Schools and Community Norms. But the standard of care is also rooted in what peer schools and even what other employers are doing to manage this unprecedented health event and be supportive to their communities. For example, large private corporations like Walmart are now paying employees for up to 14 days of sick leave to cover a necessary quarantine at home, even though the law does not (currently) require such a policy. We certainly understand that many independent schools have budgetary concerns that large companies do not; however, the prevailing standard of care is quickly evolving to one that encourages schools to offer additional benefits at this time, or at least be transparent with your employees if you cannot do so. Can your school consider offering small stipends to employees during the next budget cycle for their efforts and cooperation now? By encouraging partnership and setting realistic expectations with your employees during the crisis, school administrators will hopefully garner good will in both the short and long term, thereby meeting, in a more esoteric way, the standard of care.
What about school closures and moving the curriculum on-line? Is that now the standard of care? For schools where there is a report of a community member having exposure to COVID-19 or an actual diagnosis, the first call should be to the local public health department and we recommend following that agency’s advice. Under such circumstances, a temporary closure may be in order with cleaning crews brought to pay particular attention to high-touch surfaces before re-opening the school doors. If your school or immediate geographic community is currently free of any known contact with the coronavirus, as of now, remaining open likely satisfies the standard of care.
Where to Find Help. Organizations like the National Association of Independent Schools (NAIS) and the National Business Officers Association (NBOA) have been offering solid guidance for independent schools on addressing the challenges brought on by the coronavirus, as are the Centers for Disease Control and Prevention and your home state, county, or city/town’s public health department. We encourage independent schools to consult these resources often as they are updated frequently. But also to remember that the standard of care is as much about what the law says, as it is about what the norms dictate in your particular community. And as the virus spreads, those norms, and thus the standard of care, are changing very quickly.
COVID-19 requires us all to be innovative, flexible, and caring as we strive to keep our schools and communities healthy and safe and thereby reduce the likelihood of legal liability.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.