Teachers’ union warns new COVID-19 liability protection could backfire on schools

The House meets at the state Capitol in Nashville on June 1, 2020. (Erik Schelzig, Tennessee Journal)

The Tennessee Education Association, the state’s largest teachers’ union, says the new law enacted to provide legal protections to businesses and schools may have the opposite effect.

TEA President Beth Brown said in a release that the new law’s standards of gross negligence or willful misconduct could make schools liable if they buck federal guidelines and designate educators to be “essential workers.”  

 “TEA believes the few school districts designating educators as essential to avoid isolation protocols for staff directly exposed to a positive COVID case could meet the definition the ‘gross negligence’ and ‘willful misconduct’ outlined in the new liability law,” Brown said in a release. “CDC guidance on isolation after exposure limits spread and protects communities. Disregarding this guidance may have liability repercussions as well as unnecessarily jeopardize the health of students and educators and increase the likelihood of school closures and disrupted instruction.”

The full release follows.

NASHVILLE, Tenn. – The Tennessee Education Association is drawing attention to a law enacted last week that reportedly increased liability protections for school systems, but in fact expanded their risk of civil suits for COVID related decisions.  

The General Assembly passed and Gov. Lee signed the “Tennessee COVID-19 Recovery Act” that creates a new standard of compliance school districts must meet to be shielded from claims for loss, damage, injury or death arising from COVID-19. The new law provides COVID “gross negligence” or “willful misconduct” liability claims against school systems that were not available prior to passage. TEA believes there are clear policies, procedures and scheduling decisions LEAs can adopt and enforce to meet this new legal standard.

“TEA has advocated from the beginning of the pandemic that decision-makers must prioritize the health and wellbeing of students and educators,” said TEA President Beth Brown. “The new law adds liability considerations to making prudent decisions on when and how school buildings reopen.” 

In reviewing the proposed liability legislation prior to the recent special session, TEA recognized school districts already held an exceptionally high level of immunity from civil lawsuits under Tennessee law. Now because of the new law, standards of “gross negligence” or “willful misconduct” could be applied to system decisions that go against federal and state guidelines and recommendations, including using “essential worker” designations for educators.   

“TEA believes the few school districts designating educators as essential to avoid isolation protocols for staff directly exposed to a positive COVID case could meet the definition the ‘gross negligence’ and ‘willful misconduct’ outlined in the new liability law,” said Brown. “CDC guidance on isolation after exposure limits spread and protects communities. Disregarding this guidance may have liability repercussions as well as unnecessarily jeopardize the health of students and educators and increase the likelihood of school closures and disrupted instruction.”

The negligence and misconduct thresholds in the “Tennessee COVID-19 Recovery Act” may apply to many decisions and policies adopted by school systems. Following all federal and state COVID recommendations is a means to avoid exceeding these thresholds. TEA offers this analysis of the new liability law following guidance school systems received that they did not have to follow all CDC guidelines nor would the state recommend systems do so.  

“School districts need to carefully review their reopening and operating plans to ensure they are following CDC guidelines and using reliable COVID-19 data for clear and epidemiologically-sound decisions for in-person instruction,” said Brown.

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