21 Nine Tips FOR MANAGING LEGAL RISK IN RETURN-TO-CAMPUS INITIATIVES Roy Collins, III University Administrative Council University General Counsel – General Advice
22 Legal Disclaimer • this presentation not intended as an exhaustive description of applicable law • some items in the presentation may require further updating • contact the UGC for any specific question that applies to your unit
23 Nine Tips: Return-to-Campus Initiatives • Tip #1 - Manage Expectations • transparently communicate that institution cannot possibly guarantee “zero cases” or prevent community infection • explain that everyone must do their own part to be safe, honor restrictions, follow government guidelines Why Is This Important? The public will rely on institution’s risk description.
24 Tip #1 – Manage Expectations • Landowner liability • reinforce messaging before and during reopening • verify each person’s understanding of risk and personal responsibility
25 Nine Tips: Return-to-Campus Initiatives • Tip #2 - Assert Responsibility for Premises • mandated/suggested (subject to NMSU-wide policy): PPE use, quarantining, temperature checks, or contact tracing • periodically: deep cleaning or even closing campus to limit/eliminate contagion Why Is This Important? Once institution knows of 1 st few cases, later harm may be considered “foreseeable”
26 Tip #2 – Assert Responsibility for Premises • Landowner liability • obvious dangerous condition - someone with COVID-19 makes contact with employee or student who then becomes ill • a reasonable person would recognize both the condition and the risk, exercising ordinary perception, intelligence, and judgment
27 Tip #2 – Assert Responsibility for Premises • Landowner liability • subject to NMSU-wide policy, institution can take temperature to determine whether individual has a fever, such as via temperature check station that one uses to enter campus, subject to guidance from local and state health officials • per CDC, institution can require their personnel to wear PPE during the pandemic, and as feasible provide the PPE and provide training on safe PPE use, care, and cleaning • *(see further below regarding 4 th Amendment)*
28 Nine Tips: Return-to-Campus Initiatives • Tip #3 - Use Care in Testing Personnel and Students Seek Consent Before Testing (even if performed remotely) Why Is This Important? NMSU is a public university, and under the law considered to be a state governmental entity to which U.S. Constitutional restrictions apply in terms of unlawful search and seizure.
29 Tip #3: Use Care in Testing Personnel and Students • Constitutional claims turn upon whether a search: • occurred • was reasonable • Fourth Amendment search examples: • conducting a mandatory temperature test • requiring individual to participate in mandatory contact tracing
30 Tip #3: Use Care in Testing Personnel and Students • Fourth Amendment Exceptions: • administrative (health-related) search: • individual being searched is not being investigated for a crime • search involves the government’s important health/safety interests • “special needs” doctrine • exceptional circumstances – warrant and probable-cause requirement impracticable • “probable cause” - where individual demonstrates signs (coughing, sweating, etc.) of severe illness and a danger to others
31 Nine Tips: Return-to-Campus Initiatives • Tip #4 - Comply with Government Mandates • applies to any law or guideline that federal or state government enacts to protect against virus-transmission risk, if required for landowner, employer or higher-education institution Why Is This Important? The following factors set a reasonable “negligence per se ” standard of care: • breach of a statutory duty • violation of established policy (because those set the reasonable standard of care)
32 Tip #4 – Comply with Government Mandates • “negligence per se” • occurs when • one violates a statute that is designed to protect against the type of accident the actor’s conduct causes • accident victim is within the class of persons the statute is designed to protect
33 Nine Tips: Return-to-Campus Initiatives • Tip #5 - Promise Only What We Can Deliver • include no unconditional safety promise in institution’s documents/websites • emphasize instead that: • safety is shared duty, and COVID-19 (and any transmissible disease) is shared risk • “all community members” must take steps toward health and safety Why Is This Important? • A court can find that institution actually increased risk of 3 rd party contracting COVID- 19 on campus because: • 3 rd party relied on measures institution gratuitously undertook to keep 3 rd party safe • institution failed • 3 rd party was harmed
34 Tip #5 – Promise Only What We Can Deliver • “gratuitous undertaking” to render aid or services to another • if institution improperly takes steps to mitigate COVID-19 impact ( e.g ., social distancing in dorms, PPE in classrooms, temperature testing for employees) • presumption that institution “should recognize that the service is needed under the circumstances for the protection of other persons or property”
35 Nine Tips: Return-to-Campus Initiatives • Tip #6 - Document Compliance Steps Taken • applies to CDC guidelines and state and local health official recommendations Why Is This Important? • serves as an affirmative defense to any claim of negligence, especially in demonstrating that institution met required standard of care • valuable tool for post-crisis evaluation and future risk planning
36 Nine Tips: Return-to-Campus Initiatives • Tip #7 - Make Personal Irresponsibility a Disciplinary Ground • build information about institution’s COVID-19 mitigation efforts into: • Fall 2020 communications to students and parents • employee handbooks • student handbook Why Is This Important? Ramifications demonstrate institution’s commitment to required standard of care
37 Nine Tips: Return-to-Campus Initiatives • Tip #8 - Survey to Avoid Disability Discrimination • as “pre-admission” or “pre-enrollment” questions for students • as return-to-work questionnaire for employees Why Is This Important? EEO laws prohibit institutions from making direct disability-related inquiries of employees, and ADA prohibits institutions from discriminating against qualified employees, students and visitors on the basis of disability.
38 Tip #8: Survey to Avoid Disability Discrimination • unlawful for survey to: • mandate employee to specify any factor that applies individually to employee • refuse student admission or re-enrollment simply based on a disability • mandate student to disclose a disability
39 Tip #8: Survey to Avoid Disability Discrimination • institution can instead: • identify which employees are more likely to be unavailable for work due to the pandemic during Fall 2020 • use survey to elicit both potential medical and non-medical reasons for an employee’s absence during a pandemic
40 Tip #8: Survey to Avoid Disability Discrimination • institution can instead: • if employee with a disability poses a “direct threat” despite accommodation: • refuse to allow workplace return by employee who has COVID-19 or related symptom • encourage that employee to stay home • take steps to accommodate the employee for continued Fall 2020 work
41 Tip #8: Survey to Avoid Disability Discrimination • institution can: • require students to get any available vaccine, subject to state-law religious or personal exemption • as “pre-admission” or “pre-enrollment” question, ask voluntary set of questions about a student’s health history that might relate to COVID-19 without directly asking if student had the condition: • “Were you ever in isolation?” • “Did you quarantine?”
42 Nine Tips: Return-to-Campus Initiatives • Tip #9 - Prepare for Accommodation Requests • telework normalization may need to formalized into policy where appropriate • student residential and academic environment requests need to be examined Why Is This Important? ADA prohibits discrimination against qualified employees, students and visitors on the basis of disability. Compliance includes timely and good-faith response to a request for: • modification to an employee’s work environment • student’s request for living/learning changes due to a disability
43 Tip #9: Prepare for Accommodation Requests • verify whether an employee’s “hands-on” involvement is needed • faculty: • may require to teach remotely to extent possible • for any needed on-campus class, limit the number of in-person students at any one time • consider using an acrylic glass barrier to shield faculty during on-campus time
44 Tip #9: Prepare for Accommodation Requests • student: • may require facility repurposing/modification such as acrylic barriers, food delivery, single-occupant residency or relocated classrooms • switch to remote-learning may require additional adjustment for student who has other disability
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