COVID-19 and Liability Waivers
This reviews your rights under federal law. Always check with your local and state associations for assistance in enforcing these rights and about additional rights you may have under state laws, collective bargaining agreements or memorandums of understanding with the employer, or policies.
Q: CAN MY SCHOOL INSULATE ITSELF FROM LIABILITY BY FORCING ME TO SIGN A DOCUMENT WAIVING MY LEGAL REMEDIES I MIGHT HAVE IF I CONTRACT COVID-19 ON THE JOB?
Some schools have reportedly asked educators to sign documents waiving any rights they have against the school based on exposure to COVID-19. These waivers are not enforceable for several reasons. First, employees cannot be asked to waive their rights under the workers’ compensation laws, which would likely be their main source of recovery for contracting COVID-19 at work. Second, to the extent the school has an obligation under occupational health laws to maintain a safe workplace, that duty cannot be waived. Third, tenured teachers generally cannot be disciplined or fired for refusing a demand to decrease their workplace protections. Fourth, in states with collective bargaining for school employees, schools cannot unilaterally change educators’ working conditions without bargaining with the union.
Q: CAN MY SCHOOL REQUIRE ME TO WAIVE LEGAL REMEDIES THAT MY FAMILY MEMBERS MIGHT HAVE AGAINST THE SCHOOL IF THEY CONTRACT COVID-19 FROM ME?
In a few instances, schools have asked for waivers of liability that extend—not just to educators themselves—but also to their family members in the event they contract COVID-19 based on the educator’s workplace exposure. These waivers are probably not enforceable. For the adults in your family, you do not have the power to waive their rights. For your minor children, most states reject the notion that a parent can waive claims of negligence on a child’s behalf. And even in states that permit such waivers in certain circumstances, they are viewed very skeptically. That said, even in the absence of a waiver, schools generally have certain forms of immunity under state law that could protect them from negligence or other claim brought by a family member who contracted COVID-19.
Q: CAN MY SCHOOL REQUIRE PARENTS TO WAIVE LEGAL REMEDIES IF THEIR CHILDREN CONTRACT COVID-19?
Some schools are reportedly asking parents to sign documents waiving the school’s liability if their child contracts COVID-19. These waivers are probably not enforceable. As noted above, most states reject the notion that a parent can waive claims of negligence on a child’s behalf. And the states that permit such waivers are likely to find these ones invalid because students are not just entitled to attend school but required to do so.
Q: CAN MY SCHOOL INSULATE ITSELF FROM LIABILITY BY POSTING A SIGN OR NOTICE THAT WARNS ABOUT THE DANGERS OF CONTRACTING COVID-19?
Some schools are posting notices that purport to relieve them of any liability by warning those entering the school that they assume the risk of contracting COVID-19. These postings would not be any more effective against teachers than a written waiver. Likewise, these postings would not be effective against students, who are usually minors and are legally obligated to attend school. However, schools might limit some liability to adult members of the public, assuming they saw the notice and voluntarily accepted the risk of entering the school.
Q: WHAT SHOULD I DO IF I’M ASKED TO SIGN A WAIVER?
Do not sign any waiver without consulting with your local association or Uniserv director. Notify them immediately if you are presented one. In several cases, schools have taken back or rescinded waivers after they were confronted and publicly criticized.
Always check with your local and state associations about additional rights you may have under state laws, collective bargaining agreements or memorandums of understanding with the employer, or policies. If you believe your rights have been violated or you need assistance filing a legal complaint, you should contact an attorney for legal advice.