Helping Faculty Manage Reopening Risks

Given their responsibility for scholarly activities, it’s natural for some faculty to try to develop their own safety measures for classes and labs, but they should fight that impulse, writes Mike Poterala.

August 17, 2021
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As colleges and universities prepare for the start of the 2021-22 academic year, uncertainty abounds. More contagious COVID-19 variants and increasing case counts are causing some institutions to pivot at the last minute to remote learning and others to mandate vaccines and/or masking. Public health guidance is evolving at a rapid pace and often lacks the specificity that complex, decentralized campuses crave. Previous executive orders attempted to control gatherings and movements to keep members of the public healthy, while new executive orders are leaving it up to each of us to manage our own risks as we navigate through public environments where it is impossible to know who is or is not vaccinated. Trust in vaccines varies widely, as does, unfortunately, our trust in each other.

How should faculty members preparing to return to campus account for all this uncertainty? Given their responsibility and authority over teaching, research and other scholarly activities, it is a natural impulse for some faculty to try to figure all this out on their own and to perhaps develop safety measures that can then be included in their syllabi or added to their lab safety rules. Fighting that impulse, however, and following guidance that should be available from the institution’s administration will almost always be a better course to follow to keep the campus community safe and to avoid exposing faculty to personal liability.

At the beginning of the pandemic, many state and county officials issued stay-at-home orders. As those restrictions have evolved over time (sometimes loosening, at others times becoming more restrictive), campus leaders have relied heavily on input from their chief health officers and directors of environmental safety when establishing safety protocols for in-person experiences. Those key administrators and their staffs are generally recognized by regulators as responsible officials for their institutions.

Chief health officers worked hand in hand throughout the pandemic with state and county health officers by maintaining open lines of communication, serving together on task forces and collaborating to provide guidance in changing circumstances. Most chief health officers have been busy establishing protocols for the fall that have to account for greater density of people on campus along with the arrival of individuals from other parts of the country and even foreign countries with vaccination and positivity rates that vary widely.

Environmental safety directors helped campuses meet regulatory standards when cleaning high-touch surfaces and properly using personal protective equipment. They helped faculty and staff develop safety protocols appropriate for classrooms, dining halls, marching band practice, laboratories with specialized equipment and all other campus activities and spaces, with a special emphasis on common areas. Environmental safety directors are also busy helping their institutions plan for a safe return in the fall and, along with chief health officers, are actively following the latest scientific data and principles to maintain up-to-date health and safety procedures.

Higher education institutions have a legal duty to maintain environments that are reasonably safe for people in the campus community to learn and work in. Just as institutional leaders have wisely relied on chief health officers, environmental safety directors and other key responsible officials when establishing pandemic safety protocols to date, so should faculty members be able to rely on health and safety guidance provided with input from these responsible officials when they return in the fall. At the same time, campus leaders and responsible officials should be in regular communication with academic leaders and faculty representatives to ensure the administration’s guidance adequately addresses the behaviors and risks present in classrooms, laboratories and other academic spaces.

If someone gets sick in a class, laboratory, facility or program and files a claim for money damages, the institution must establish it maintained a reasonably safe learning and working environment. The institution’s defense will depend in part on whether health and safety protocols developed by or with the input of its responsible officials (who help ensure adherence to current best practices in their fields) were actually followed. If such protocols were either not in place or were not followed, the institution will have a difficult time defending against the claim.

This scenario would get demonstrably worse if it were determined that faculty or staff ignored institutional health and safety measures that were in place or chose, without authorization, to establish their own measures. In that case, in addition to potentially exposing the institution to liability, the faculty or staff member could also face legal liability and/or be subjected to institutional discipline for having acted outside the scope of their authority. This stems from the fact that, in enforcing applicable laws, judges, juries and regulators expect that institutions will rely primarily on their responsible officials in establishing and administering health and safety protocols. (The same holds true when determining whether institutions have met their many other legal obligations -- think nondiscrimination, responding to sexual misconduct allegations and the like.)

After about 17 months of significant remote work and study, campus density rates will be soaring this fall, albeit under conditions that vary widely across the country. Some institutions are requiring vaccines, while legislation in certain states prohibits many colleges and universities from mandating vaccines or even mask wearing. Especially as concerns about the Delta variant of COVID-19 increase, it is vital that institutions continue to look to their chief health officers and environmental safety directors to play leading roles in establishing health and safety protocols for this fall. These responsible officials are in the best position to understand local conditions, make proper risk assessments and establish health and safety measures that best protect the health of faculty, staff, students and others on their campus.

One size will not fit all colleges and universities this fall. But one consistent and coordinated approach to protecting health and safety, informed and led by responsible officials, will go a long way toward safeguarding each campus.

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Mike Poterala is vice president for legal affairs and general counsel at the University of Maryland, College Park. The views are his own and do not constitute legal advice.


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