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Planned Reopening of Schools Raises Thorny Legal Issues

Planned Reopening of Schools Raises Thorny Legal Issues

As July ends, the coronavirus pandemic is not letting up. Floridians who were hoping the worst was over in May or June now find that infection rates across their state are worse than ever.

Parents and school employees are thus facing the coming school year with fear and trepidation. Administrators, who’ve been given the mandate to reopen their schools for fall without clear guidance on how to do it, are worried too. It’s no surprise there is so much anxiety; the coronavirus pandemic raises sticky legal issues with no clear answers.

First, it’s not clear whether workers’ compensation will be available to teachers and staff who get Covid-19. While workers’ compensation always covers tangible injuries—things like broken ankles—it is more limited when it comes to disease exposures.

Generally, workers’ compensation covers exposures that are part of the specific work environment. For example, health care workers who catch Covid-19 while treating patients will be covered because their work gives them uniquely high exposure levels.

However, it’s not clear that the same is true for people who work in public schools. There is certainly a good argument that school children may lack the capacity, or in older grades the willingness, to take infection risk seriously. That alone may make schools particularly dangerous. Unfortunately, that issue hasn’t been litigated yet. No one really knows how the courts will rule.

Parents may also wonder whether they can sue if their children become ill, or if their infected children make them ill. Again, the answer is not clear.

We know the policy decision to open schools won’t make the school boards liable for anything. In Florida, government policy decisions cannot ever form the basis of personal injury or death claims. However, carrying out policy—or lower-level “operational” acts of government—can create grounds for a lawsuit if they’re done negligently, or worse.

There’s certainly a possibility that a school’s failure to enforce policies on things like social distancing might lead to infections and illnesses. Again, however, exactly how courts will rule on claims arising from that is still a big question mark.

Then there’s the Americans with Disabilities Act. School boards will be scrambling to decide on reasonable accommodations for employees who are particularly vulnerable to Covid-19. Many Florida schools were understaffed before this pandemic began, and they won’t want to lose valued employees because of coronavirus fears. However, whether they have the ability and the money to make accommodations for them remains to be seen.

These are just a few of the thorny issues raised by school environments in the time of coronavirus. There are plenty of other things percolating. Litigation has already begun in South Florida to stop Florida schools from reopening entirely. Also, because of changing conditions on the ground, we don’t know if our government will modify its plans to reopen. States all over the country are rolling back their reopening plans based on infection rates in their communities.

The only thing we can probably all agree on is that we are facing unprecedented uncertainty and confusion. Courts, like all other institutions in our society, will have to muddle through and improvise during these challenging times.

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