Paul L. Caron

Tuesday, September 8, 2020

Are Universities (And Law Schools) Legally Obligated To Exempt High-Risk Faculty From In-Person Teaching During COVID-19?

Mark L. Jones (Mercer), Cathren Koehlert-Page (Barry), Suzianne D. Painter-Thorne (Mercer) & Gary J. Simson (Mercer), It’s Alright, Ma, It’s Life and Life Only: Are Colleges and Universities Legally Obligated during the Coronavirus Pandemic to Exempt High-Risk Faculty from In-Person Teaching Requirements?:

CoronavirusAfter hurriedly transitioning to online learning when the coronavirus pandemic burst onto the scene during spring semester 2020, colleges and universities across the U.S. spent much of the spring and summer deciding how to proceed in the fall. Should all courses continue to be taught entirely online? Should all return to in person? Is the best answer instead some sort of hybrid curriculum? Because the pandemic has defied prediction at every turn, colleges and universities not going entirely online can’t help but know that at any point during the semester they may suddenly be forced to revisit and revise their decision. Furthermore, after a summer in which the virus continued to infect U.S. residents at an alarming rate, colleges and universities are surely on notice that the pandemic should figure front and center in their planning as they think about in-person vs. online instruction for spring semester 2021.

We believe that, for the duration of this pandemic, a college or university planning to offer any in-person classes has a moral obligation not to require any faculty members to teach in person who, out of concern for their own physical or emotional well-being or for that of another member of their household, ask to teach online instead. For now, however, we leave it to others to discuss more fully colleges’ and universities’ moral obligations. Our topic is colleges’ and universities’ legal obligations to allow faculty to opt for online, rather than in-person, teaching during this pandemic, and within that topic, we limit our focus to the group of faculty whom we believe colleges and universities have the clearest legal obligation to protect — those who, according to the criteria identified by the Centers for Disease Control and Prevention, appear to be most vulnerable to getting seriously ill or even dying if they contract the coronavirus. In the language of the CDC, our focus is faculty members “at increased risk of severe illness from COVID-19” — a group that we call “CDC high-risk faculty.” According to the CDC, anyone is high risk who has reached age 65 or who has one of various specific medical conditions, including cancer, chronic kidney disease, pregnancy, hypertension, and more.

We outline various arguments that colleges and universities are legally obligated during this pandemic to exempt CDC high-risk faculty from any in-person teaching requirement.

Two of the four legal sources upon which we rely are federal statutes that qualify as major statements of national policy — the Americans with Disabilities Act and the Age Discrimination in Employment Act. The other two sources are important state-law doctrines with strong support in the American Law Institute’s most recent restatement of the law of torts — protection from intentional infliction of physical harm, and protection from intentional infliction of emotional distress.

Our hope is that our arguments will provide college and university leaders with a perspective that will prompt them to recognize the great importance of adopting an exemption policy that at a minimum frees all CDC high-risk faculty from any requirement to teach in person. Perhaps they would adopt such a policy simply to avoid possible legal liability. Ideally, however, they would do so at least in part out of a recognition that a college or university policy at odds with legal sources as weighty as the four under discussion is a policy that speaks very poorly for the institutions they are charged with leading. The fact that it’s difficult to place a dollar value on a college’s or university’s reputation for fairness and humaneness doesn’t mean that a policy that tarnishes that reputation is not very costly to the institution. We have no doubt that it is.

Coronavirus, Legal Ed Scholarship, Legal Education | Permalink


Whoops, right post, wrong thread. This was meant to go into the Tax Court thread. Oh well.

Posted by: Dale Spradling | Sep 9, 2020 6:29:52 AM

Actually, in addition to the legal causes of action suggested by the authors - the Americans with Disabilities Act, the Age Discrimination in Employment Act, intentional infliction of physical harm, and intentional infliction of emotional distress - those faculty who because of age and/or medical conditions are at extreme risk from the coronavirus might consider filing a complaint under a state or local statute which prohibits discrimination on the basis of disability.

I found that even the threat of filing such a complaint with our local anti-discrimination agency regarding the brief and minimal exposure to secondhand tobacco smoke nonsmokers experienced near the entrance and exits of campus buildings, where smokers tended to congregate, forced my university to ban smoking anywhere outdoors on our property.

Clearly that risk is much smaller than the deadly danger professors would face if forced to teach in classrooms. See, e.g.:

George Washington Law Professor Threatens to Sue Administrator for Perceived Failure to Limit Smoking Outside Buildings

After Professor Threatens to Sue Official, University Says it Will Take Stronger Steps to Deter Smoking Outside Buildings

Law Prof. Threatens GW With Lawsuit in Hopes of Outdoor Smoking Ban

GW to Post Signs Asking Smokers to Back off from Buildings

Posted by: LawProf John Banzhaf | Sep 8, 2020 11:01:56 AM

Good luck trying to prove substance without form. Plus, if you have enough form, there must be some substance somewhere.

Posted by: Dale Spradling | Sep 8, 2020 4:19:27 AM