We encourage you to work proactively through your local associations to address many of these issues with your school districts. This includes addressing reporting/work location issues, pay matters, safety issues, and other matters. Separate advisories on many of these topics are available through AEA on the AEA website. You should also acquaint yourself with relevant governing board policies, including GBGCB/GBGCB-E, which deal with communicable diseases (staff exclusion from school, reporting of diagnosed and suspected cases and notification, and confidentiality).
Disclaimer: What follows is general information on employee rights in the context of the COVID-19 outbreak in Arizona. Employee rights and responsibilities may vary in some respects from district to district and from position to position. For example, individual employment contracts, meet-and-confer agreements, and governing board policies and regulations may differ in significant ways by district and by employee classification. This AEA Legal Department publication is for informational purposes and is not intended as a substitute for legal or other professional advice based on or addressing one’s specific circumstances.
Q: If I contract COVID-19 at work, what are my legal options against the person who exposed me to COVID?
A: Generally speaking, the only real remedy available will be workers’ compensation. Workers’ compensation is the exclusive remedy against your employer or coworkers for any injury at work. The only exception is if your employer or coworker injures you through “willful misconduct,” which is a difficult standard to prove and would almost never apply. While there may be a right to pursue an action against a student, parent, or other non-employee who exposed you to coronavirus, filing a workers’ compensation claim is still often the best option under such circumstances for several legal and practical reasons.
Q: I try to be careful, but what would happen if I unintentionally expose a coworker or student to COVID-19 at school or cause them to receive exposure? Could I be sued?
A: As explained above, workers’ compensation will generally be the only remedy available to any coworkers whom you may unwittingly expose.
For others, such as students, parents, or vendors, they would have to show that you were at fault in some sense and that you caused them to get COVID-19, resulting in damages to them. For example, in the case of a negligence action, someone would have to show that you owed them a duty of reasonable care and that you breached that duty, causing them damages. Such claims are not easy to bring successfully in the context of a pandemic. Identifying and proving the source or agent of transmission alone can be difficult, particularly since both presymptomatic spread and asymptomatic spread are possible and since the person who contracted COVID-19 may have interacted with many others who could potentially have the virus in a variety of places and settings, such as at the grocery store. Also, if you follow the guidelines established by the CDC and other public health agencies (e.g., stay home if you are sick or have symptoms, wash hands, wear a mask) and attempt to ensure that students are doing the same, it would be hard to show that you failed to exercise reasonable care.
It is important to remember that you are only responsible for what you do or don’t do and for what is within your control. From both a practical and a legal perspective, you are neither expected nor able to ensure that zero transmission occurs in the classroom or elsewhere in school. With a virus as tranmissible as coronavirus is, that would be an impossibly high and unrealistic standard. You are simply expected to exercise reasonable care under the circumstances. If transmission occurs at school because of a lack of PPE, cleaning supplies, or other necessary items, that is the district’s failing, not yours.
It is relatively rare for a school employee to be sued for something they allegedly did (or didn’t do) in the course and scope of employment. Someone contemplating filing a lawsuit might not have a viable legal claim or may have not suffered sufficient damages to justify a lawsuit. Also, filing a lawsuit can be expensive, time consuming, and emotionally draining. Even if a student or parent wished to sue you or another school employee who was acting in the course and scope of employment, they would first have to comply with the notice-of-claims statute, which is generally a prerequisite for filing suit, by filing a proper notice on you (and likely on the district) within 180 days of the cause of action accruing. Any lawsuit would likely have to be filed within a year of the incident. The school district would normally be responsible for defending you in any such lawsuit. Active AEA members also have access to the Educators Employment Liability (EEL) benefit, which provides up to $1,000,000 of excess liability insurance in the event of a lawsuit. At least through August 31, and possibly beyond, such insurance may provide excess liability coverage (beyond whatever the district provides) in the event of such a lawsuit.
Q: My school district is asking me and other employees to sign a “waiver, release, and assumption of risk form” related to our jobs at the district. Is this legal?
A: Based on the forms that we have seen, several aspects of the form are likely unlawful and the form is likely ultimately unenforceable. The forms we have seen broadly waive any and all claims an employee may have and would have the employee assume all risks, not just those related to COVID-19. Under the law, there are claims that cannot generally be waived by an agreement with an employer, such as workers’ compensation claims and claims related to earned paid sick time. In addition, the forms we have seen are so broad that they would waive even claims based on intentional or reckless conduct, something that the law does not permit. Not only are such forms legally flawed, but they also send the wrong message to school employees planning to return at some point to a safe and healthy workplace.
AEA wrote a letter to Arizona Superintendent of Public Instruction Kathy Hoffman addressing these concerns and requesting that she recommend against the use of such forms as schools look to reopen. We have also reached out to each district that we know has issued such forms to employees. We continue to monitor the use of employee waiver forms and will consider all options for pushing back against the use of such forms. If your district is using such forms for employees, please reach out to your local association and AEA Organizational Consultant for assistance.
Q: I heard that the State Legislature was on the verge of passing a bill that would give liability protection to schools and others related to the transmission of COVID-19. What happened?
A: The State Legislature was considering legislation that would have insulated schools from liability to a person who contracts COVID-19 based on any strict liability (e.g., workers’ compensation), premises liability, or ordinary negligence theory. Under one of the bills proposed, basically the only way a school could potentially be held liable would have been if one could show that the school acted with gross negligence.
AEA opposed this bill because the bill would likely have eliminated workers’ compensation claims by school employees that they contracted COVID-19 at work and because we believe the bill was unconstitutional. The State Legislature adjourned sine die without taking action on the bill, so the bill never became law.
