Paul L. Caron

Thursday, December 3, 2020

Professors Fight Spring 2021 Face-To-Face Teaching Mandates

Inside Higher Ed, Professors Fight Spring 2021 Face-to-Face Teaching Mandates:

With coronavirus case counts rising in many parts of the country and no vaccine yet widely available, academe is still far from normal. Yet a number of campuses are pushing for more normalcy, in the form of more face-to-face courses for spring.

College and universities seeking more in-person instruction next term cite student demand for it, among other factors. Politics and institutional finances are also undoubtably at play. And so faculty members and graduate students are urging their institutions, by various means, to pump the brakes on face-to-face mandates and to widen exemption criteria for instructors seeking to stay remote.

In Florida, for instance, faculty unions at three public universities -- the University of Central Florida, the University of Florida and Florida Atlantic University -- are filing grievances against their institutions regarding in-person instruction. These actions follow other forms of outreach by professors to their administrations.

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Faculty members who are concerned about being forced to teach face-to-face in classrooms, despite the huge and ever growing risks of death, disability, or hospitalization from the coronavirus, have legal remedies which they can utilize, or at least threaten to utilize in bargaining with administrators.

In other words, “Suing the Bastards” - or at least threatening to do so - is likely to be more effective that “filing grievances” and/or “other forms of outreach” as colleagues in Florida are reportedly employing.

For example, the Americans With Disabilities Act requires employers to make a “reasonable accommodation” to employers with disabilities such as high blood pressure, diabetes, etc. which make them especially vulnerable to COVID -19.

Forcing them to teach in classrooms is hardly a “reasonable accommodation,” despite whatever precautions (e.g. masks, separation, etc.) the university might take, especially when another “reasonable accommodation” - on-line instruction - is readily available.

The fact that on-line teaching is “reasonable’ is established by the simple fact that so many other schools and universities are using it, and do so because they recognize that teaching in a classroom is dangerous.

The same protections and legal standards often also apply under state or local anti-discrimination statutes which prohibit discriminating against persons with disabilities.

An alternative - especially for those who may be obese or over 65, and therefore may not be regarded as having a “disability” - might be to file a complaint under the “General Duty Clause” [Section 5(a)(1)] of the Occupational Safety and Health Act.

It requires employers to provide workplaces that are “free from recognized hazards that are causing or likely to cause death or serious harm to employees.”

This "general duty clause" permits any employee to file a formal legal complaint regarding workplace hazards even if no specific OSHA rule or regulation has been violated, and the statute then prohibits any form of subsequent retaliation by employers for the filing of such complaints.

For example, when I headed our nation's antismoking organization, we were able to use these kinds of complaints, and even the threats of such complaints, to prompt companies to protect employees from the risks posed secondhand tobacco smoke, which even nonsmokers’ rights advocates recognize is much less dangerous than the airborne coronavirus.

Indeed, the mere threat of one such complaint was enough to get my own university, GWU, to ban smoking years ago in professorial offices despite claims by many who insisted they had a right to smoke.

Also, the threat of a similar complaint prompted GWU to finally become a smokefree campus, outdoors as well as indoors.

Posted by: LawProf John Banzhaf | Dec 3, 2020 10:39:03 AM