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Litigation Trends Analysis

October 14, 2020

COVID-19 Outbreaks Plague Universities Around the Country
Colleges and universities throughout the United States have been working to establish a new normal for conducting on-campus education in a post-pandemic world. The first step for some schools was requiring students to sign a COVID-19 liability waiver before allowing them on campus for the fall semester. For example, Penn State’s waiver requires students to “acknowledge that exposure or infection may result in personal injury, illness, permanent disability, or death.” The University of New Hampshire’s “Informed Consent Agreement” similarly forces returning students to assume the risk of exposure to COVID-19.

While many students protest signing such waivers, it’s becoming clear that colleges and universities do not know how to prevent outbreaks among student populations, some of which are resistant to following social distancing and other safety protocols. As of September 25, a New York Times survey of more than 1,600 colleges and universities in the United States had discovered more than 130,000 COVID-19 cases and 70 deaths traceable to college and university campuses, most of those cases arising since classes resumed in the fall. At least 230 colleges have reported 100 or more cases, and a 19-year-old student at Appalachian State University in North Carolina died of the virus last month. Case numbers continue to rise in spite of schools’ generally robust efforts to prevent the spread of COVID-19 on their campuses.

Before the fall term began, the University of Illinois at Urbana-Champaign was touted as having an impressive prevention plan, which included requiring its more than 40,000 students to submit to COVID-19 tests twice per week. Students aren’t permitted in campus buildings unless an app confirms that their test has come back negative. Somehow, the university still reported rising numbers of positive coronavirus cases and has already had to implement a two-week lockdown for undergraduates. It turns out that some students continued to go to parties even after testing positive. And, according to university administrators, some students who tested positive tried to circumvent the app so that they could enter university buildings while sick.

Universities with outbreaks have been engaging in a range of efforts to contain the virus. After an outbreak at the University of North Carolina at Chapel Hill, the school implemented temporary remote learning. The University of Notre Dame also switched to remote instruction for two weeks after its case numbers rose. The Fighting Irish had to postpone their football games for a few weeks because too many on the team had COVID-19. In mid-September, Grand Valley State University students living both on and off-campus were subject to a staying in place order after more than 600 students tested positive for COVID-19 within the first weeks of school. And when East Lansing saw a 315% increase in COVID-19 cases since September 1, with 80% of those cases among students at Michigan State University, the Ingham County Health Department recommended that all MSU students self-quarantine. At Oklahoma State University an entire sorority house had to quarantine after almost two dozen positive cases, and more than 100 students in one dorm at Colorado College were in quarantine after a student in the dorm tested positive for COVID-19 and did not practice social distancing.

Some schools have gone several steps beyond merely ordering quarantines and monitoring students with apps and turned to punitive measures. At Purdue University, 36 students received suspensions last month for flouting the rules and attending an off-campus gathering that lacked appropriate COVID-19 safety measures, just hours after a warning from administrators. In just 5 days in August, The Ohio State University issued about 225 interim suspensions, although the suspensions were lifted if students showed they did not attend, host, or participate in unsafe activities. Penn State suspended an entire fraternity for holding a 70-person event, and Syracuse University suspended students after a large group of freshmen gathered in the campus quad without regard to COVID-19 safety measures.

In addition its own monitoring, Northwestern University is even enlisting nearby residents to help control students’ off-campus behavior. During a community town hall, a Northwestern dean asked the university’s neighbors in Evanston to use an online form to report student social gatherings that don’t follow health precautions. The dean asked for residents to provide photo evidence and the address of the event to university officials.
No doubt given the continuing spread of the virus on college and university campuses, related litigation is sure to follow. In the coming months we may see lawsuits testing the legality of COVID-19 liability waivers and scrutinizing the sufficiency of safety measures on campuses. We may also see suits seeking reimbursement of paid-for room, board, and tuition costs as frustrated parents try to recoup losses sustained when their kids were suspended merely for going to a party.

Age Discrimination an Underlying Theme in COVID-19 Employment Cases
A Michigan-based construction company recently saw a lawsuit filed against it in state court by a former employee alleging age discrimination. The employee claimed that a COVID-19 furlough was used as a pretext to eventually terminate his employment and replace him with younger employees.

Employees Pursue Constructive Discharge Claims as an Element of COVID-19 ADA Cases
A former administrative assistant filed a federal lawsuit against a Pennsylvania-based behavioral health organization, alleging that she was constructively discharged in violation of the Americans with Disability Act (“ADA”). The assistant, who suffered from COPD, initially was granted permission to work from home when the COVID-19 pandemic began. Eventually, the assistant alleged, that permission was revoked and she was required to use her PTO. When that was exhausted, she was required to provide a doctor’s note clearing her for normal work. Instead, she resigned and filed the lawsuit, alleging failure to accommodate, discrimination, and constructive discharge.

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