What if a Child Gets COVID at School? School Liability Waivers

Carolyn Buppert, MSN, JD

Disclosures

September 14, 2020

Find the latest COVID-19 news and guidance in Medscape's Coronavirus Resource Center.

Some schools are requiring parents to sign a waiver of liability from any COVID-19–related claims resulting from their children's in-person school attendance. Are these waivers legal? What do they mean for parents and healthcare providers?

Here is an example of waiver language that some schools are sending parents:

I hereby release, covenant not to sue, discharge, and hold harmless __ Public School, its employees, agents, and representatives, of and from all liabilities, claims, actions, damages, costs or expenses of any kind arising out of or relating to COVID-19 risks. I understand and agree that this release includes any claims based on the actions, omissions, or negligence of ___ Public School, its employees, agents, and representatives, whether a COVID-19 infection occurs before, during, or after participation in any ___ Public School program

Schools that ask parents to sign such a waiver are presenting parents with a take-it-or-leave-it decision, with no opportunity to negotiate. The school isn't offering to provide any specific level of precautions. They aren't saying that classrooms have been redesigned; that air flow is optimal; or that teachers have been trained on how to screen students for exposure, signs and symptoms of COVID, and what to do if there are positive findings.

The legal term for this type of take-it-or-leave-it proposition is "adhesion contract." It's somewhat similar to small print on the lift tickets at a ski resort saying that the purchaser of the ticket agrees that the resort bears no responsibility for injuries on the slopes. That type of contract is enforceable in some, but not all, states.

There is a big difference, though, between adhesion contracts for skiing and for schooling. Skiing is optional. Primary education is a right in this country. If a parent declined to sign a waiver, a public school may be able to restrict the student from entering the school. However, the school must come up with an alternative way to provide the student an education, such as a virtual program.

Note, though, that this potential legal conundrum is all new territory, case-wise. School districts are saying that the waivers are a way to inform parents of the risks of returning to school. However, that could be accomplished by asking the parents to sign a form that spells out the risks, tells parents what the school is doing to reduce risks, and warns that the situation is not fully controllable.

The viability of a parental lawsuit against a school, if a child gets sick, is difficult to predict. Public schools are not particularly vulnerable to lawsuits in normal times. Most public schools are covered by state Tort Claims Acts, which limit the liability of state agencies. Some state legislatures and the US Senate are working on bills that would relieve schools of liability when they have adhered to official COVID-19 safety guidance. The CDC provides guidance on school reopening on its website.

State health departments also are putting out guidance for schools. Here is an example from Washington State. Even if their liability is limited, however, if a school were to recklessly disregard official guidance or current knowledge on reducing risks, the school may still be liable for student injury, waiver or not.

As for what parents should do, it is reasonable and prudent, in my view, to ask the school to identify the precautions they have taken and will continue to take. Then, parents will need to make a decision based on their child's health history, current health, and the child's ability to follow directions about protecting self and others. An additional consideration is whether anyone else living in the home is vulnerable. If a parent decides to send the child to school and doesn't want to sign a waiver, it is appropriate to ask the school for accommodations, such as virtual classes.

How do healthcare providers enter into this matter? The very act of being required to sign a COVID waiver could increase parents' apprehension about sending their children to school. Many are likely to turn to clinicians for information and reassurance. Parents may ask about the risks of returning to school, for their child and for others in the home. Healthcare providers, who know the child and family, are best positioned to help parents understand these risks and provide important education about prevention and risk mitigation.

Carolyn Buppert (www.buppert.com) is an attorney and former nurse practitioner who focuses on the legal issues affecting nurse practitioners.

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