COVID-19 and Higher Ed: Weekly Update
June 1-5, 2020
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Updates from New England Institutions
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Check out NEBHE's COVID-19 updated dashboard for complete data
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HEIs' plans for fall curriculum delivery*
- Fully Online Delivery: 11
- Fully On-Campus Delivery: 55
- Dual Delivery: 28
*Note: The above listed plans for the fall have been announced informally and are, therefore, merely tentative. The majority of HEIs plan to make formal announcements about AY20-21 later in the summer.
What's new on the dashboard:
We've updated the visualization display to reflect HEIs' new concerns as they plan ahead for the fall. The following information is new:
- Institutional characteristics (e.g., enrollment, staffing totals).
- Location of hospitals, urgent care facilities, and veterans medical facilities relative to New England institutions of higher education.
- Institutions' healthcare capacities (e.g., healthcare employees, on-campus hospitals)
We've integrated healthcare information because, as students begin to return to campuses throughout the region, access to medical facilities will be paramount to monitoring and containing potential future outbreaks of COVID-19.
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Resource Spotlight
COVID-19-Related Limited Liability Protection for Higher Education
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There is growing concern that, even if higher education institutions follow all health and safety guidelines, they are vulnerable to the possibility of an impending
tsunami of COVID-19-related litigation
.
COVID-19-related limited liability protection is one of the most challenging issues to emerge from the pandemic's disruption. Many variables are at play, institutions will have varying risk profiles, and it is critical that an assurance of
consumer protection and labor rights
is made.
On May 28, NEBHE joined several other higher education associations by co-signing a
letter from the American Council on Education to Congress
(left), which urges lawmakers to "quickly enact temporary and targeted liability protections related to the COVID-19 pandemic" to protect "higher education institutions and systems, affiliated nonprofits, and healthcare providers and facilities from excessive and speculative lawsuits arising out of the pandemic."
This week, we survey the efforts being made — at both the federal and state levels — to provide temporary civil litigation protection to higher education institutions that adhere to government standards and guidance related to COVID-19 exposure.
FEDERAL-LEVEL:
The U.S. Senate is in the early stages of drafting a bill that would protect individuals and businesses (possibly including higher education institutions) from being held liable for personal injury due to exposure to COVID-19 in connection with the businesses' services or accommodations. This liability protection would apply only to businesses, services, and accommodations that adhere to government standards and guidance related to COVID-19 exposure. Businesses may be held liable in cases where there is a clear case of gross negligence, willful misconduct, intentional criminal misconduct, or intentional infliction of harm. (No link to the bill has yet been made publicly available.)
- Opposing Argument: Testimony of David Vladeck (Professor at Geogetown University Law Center). Prof. Vladeck highlights the unprecedented nature of the liability protection that is being sought. He argues that liability rules are the realm of the states and that federally granted immunity may be unneeded. He states, "The touchstone of common law torts has always been reasonableness: There is no liability so long as the entity acts reasonably." That is, if safety guidelines are enforceable, and if a business entity is adhering to those safety guidelines in a reasonable manner, then liability protection is unnecessary, as, already under state law, compliance with regulations provides a defense to liability.
STATE-LEVEL:
The state reopening plans for
Connecticut
and
Massachusetts
recommend, among other gating conditions, that the state should provide a safe harbor from liability for institutions. While Connecticut's recommendation suggests that institutions be indemnified via executive order, Massachusetts' plan does not specify how such protections ought to be granted.
Rep. Jeffrey Roy (D-MA) introduced legislation (
HB 4659
) that would provide that certain institutions of higher education offering emergency aid be immune from suit and liability during the coronavirus outbreak. The bill has been sent to the Joint Committee on the Judiciary.
Outside New England, two states —
Utah and North Carolina
— have already passed legislation to provide temporary civil litigation protection to businesses and/or higher education institutions.
Utah
- SB 3007/Utah Code § 78B-4-517 — signed into law by the governor on May 4 — grants civil immunity to persons (including private employers, businesses, and government) related to exposure to COVID-19. A person is immune from civil liability for damages or an injury resulting from exposure of an individual to COVID-19 on the premises owned or operated by the person, or during an activity managed by the person. The legislation applies broadly to individuals, associations, institutions, corporations, companies, trusts, limited liability companies, partnerships, political subdivisions, government offices, departments, divisions, bureaus, or other body of government, and any other organization or entity. No immunity is granted in cases of "willful misconduct," "reckless infliction of harm," or "intentional infliction of harm."
- The Utah System of Higher Education has adopted an appropriate "safe harbor" from liability for those institutions that bring students back to campus and take reasonable steps to comply with state guidelines and complete the planning efforts outlined in this report. The language as written protects institutions but not individuals.
North Carolina
- The COVID-19 Recovery Act — signed into law by the governor on May 4 — states that essential businesses are protected against potential civil claims from customers and employees for injuries or death purportedly attributable to COVID-19. Under the Act, an essential business is defined as any entity identified in the COVID-19 essential business executive order issued by Gov. Roy Cooper on March 27 and "any business that the Department of Revenue determines is essential." The Recovery Act does not protect essential businesses from individuals asserting claims of gross negligence, reckless misconduct, or infliction of intentional harm.
Similar bills in
Arizona
and
Wyoming
have failed because the legislature adjourned before the bills could be voted on. A bill in
Kansas
was vetoed by the governor.
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For more, visit NEBHE's COVID-19 Resource Page
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