Paul L. Caron

Thursday, May 14, 2020

Do Faculty Have The Right To Refuse To Teach In The Fall Due To COVID-19?

Inside Higher Ed, Do Faculty Have The Right To Refuse To Teach In The Fall Due To COVID-19?:

CoronavirusAs colleges and universities agonize over whether students will return in the fall, either to campus or online, they’re making a big assumption: that faculty members will show up to teach.

The expectation isn’t ill founded. Faculty jobs, especially the good ones, were hard to come by even before hundreds of institutions announced pandemic-related hiring freezes. No one wants to be out of a job right now. But no one wants to get sick, either.

Teaching online for another semester is so far outside many professors’ original job descriptions that it is nearly as unpalatable, to some, as being shut in a room with students. Even so, many professors say they'd prefer a remote term, or even a delayed academic year, to teaching face-to-face again too soon.

“So far, no one has really talked about protecting the faculty,” said Alan Czyzewski, a professor of accounting at Indiana State University who is over 60 and statistically at a greater risk of falling ill with COVID-19 than many of his students and some of his colleagues. “I’m not saying we shouldn’t be doing everything we can for students, but the faculty are equally important. If we get sick, or three to four of us get sick all at the same time, who’s going to be teaching class?” ...

The right not to work under certain conditions draws upon existing Equal Employment Opportunity Commission guidelines that require reasonable workplace accommodation for reasons of disability or genetic information, Lee says. Given limited testing capabilities and the many epidemiological unknowns of COVID-19, “faculty members would generally fall within this latter category, even without preexisting conditions, until a vaccine is available."

For complete TaxProf Blog coverage of the coronavirus, see here.

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Even President Donald Trump, who is a very strong supporter of re-opening colleges and universities to "normal" teaching as soon as possible, and certainly by the fall, agrees that those of us who are older, and especially those who have medical conditions ["disabilities" under the ADA] such as obesity, diabetes, high blood pressure, etc. which place us at an extraordinarily risk of death or permanent disability from exposure to the coronavirus, should not be forced to return to classroom teaching this fall, presumably even with masks and some attempts at social distancing.

Here's what he said on Friday [] :

"I don’t think that you should have 70-year-old teachers back yet. They should wait until everything is gone. I don’t think you should have a professor that’s 65 and has diabetes or has a bad heart back necessarily, or somebody that’s older than that."

Posted by: LawProf John Banzhaf | May 16, 2020 5:18:35 AM

Whether or not faculty have an absolute and unqualified legal right to refuse to teach in the fall due to COVID-19, they certainly have a variety of legal and law-related remedies which they can use to protect their lives (and others in their household) from this deadly and highly contagious virus.

Moreover, advising the university bureaucrats of your intentions to exercise those rights - by yourself if necessary, but hopefully also with others - now, before they make any firm no-exceptions decisions to require all professors to teach in classrooms this fall, may dissuade them from risking your life for the sake of protecting tuition income.

First, all law professors have rights under the Occupational Safety and Health Act. It has a General Duty Clause [Section 5(a)(1)] that requires workplaces to offer environments that are "free from recognized hazards that are causing or likely to cause death or serious harm to employees," even in the absence of an alleged breech of any rule or even guideline - although COVID-19 by itself would certainly satisfy that statutory definition, especially if it led to hospitalization.

In this connection it should be noted that under legal precedents I helped establish regarding secondhand tobacco smoke, persons who for whatever reason are especially sensitive and/or otherwise at increased risk from exposure to a substance in the workplace are legally entitled to special enhanced protection. That, for example, would probably include older professors, even if they have no other medical conditions.

Indeed, just the threat of such a legal action forced my university to initially ban smoking in private professorial offices, and latter to ban it even outdoors on campus. Clearly the risk of exposure to the coronavirus in the classroom is much more serious than the risks posed by tobacco smoke drifting through a common vent system, or those likely to be encountered when strolling outdoors on campus.

Second, law professors who have one or more of the many conditions which make them especially at risk of death or disability for even casual exposure to the virus - e.g., high blood pressure or diabetes - are entitled to a “reasonable accommodation” to their “disability.”

As many lawyers and other experts have explained, permitting such persons to continue teaching over the Internet in the fall, as they did during the latter part of the spring term, would be an accommodation which is “reasonable.”

We know that using on-line teaching in general, much less for the small number of professors at exceptional high risk of death, is “reasonable” because many universities seem to be adopting this policy for the fall term, just as virtually everyone used it this past spring.

Also, it’s reasonable - even when applied to all professors - since Cal State, Harvard Medical School, and perhaps others are planning to offer on-line teaching for all professors.

Universities can hardly argue that on-line teaching is grossly inferior (and therefore not a “reasonable accommodation”) because most are refusing to provide refunds for students forced to accept distance learning at the end of the spring semester, and most seem to be anticipating charging the same high tuition, even if forced to return to on-line teaching.

Also, those who are most concerned about dying - and are therefore most likely to refuse to teach in a classroom - can call (and/or at least threaten to call) in sick, and/or take action under the federal Family and Medical Leave Act and/or its state counterpart, the U.S. Family First Coronavirus Response Act (perhaps with a note or other help from a sympathetic MD), in addition to filing complaints with the EEOC, and/or OSHA.

Once any such complaint is filed, an employer is barred from taking any action which might be seen as retaliation - in additional to the very strong protection tenured professors already enjoy.

So, yes, law professors have rights, especially if they are willing to “Sue The Bastards!”

Posted by: LawProf John Banzhaf | May 15, 2020 1:52:54 PM

Mike, the issue is not whether faculty and staff should have the right not to do their job. What they're demanding is that they be paid regardless of whether or not they show up. Other than the most elite colleges and grad programs, few students will be willing to pay sticker price for an online education. Staffing and salary levels are going to have to adjust to reflect a product that is perceived by those paying for it to be inferior.

Posted by: PaulB | May 15, 2020 12:43:38 PM

That said (see above), I don’t think anyone who doesn’t want to come to school should be forced to.

Posted by: Mike Livingston | May 15, 2020 2:34:37 AM