According to a recent survey by the Connecticut State Department of Education, 76% of students and 81% of teachers expect to return to their classrooms this fall.  Nationwide, state governments are providing moving goal posts for what a school year could/should look like. While there is no one-size-fits-all approach when it comes to facility safety, health and environmental (SHE) compliance, each school (and/or district) should be considering several key legal issues.

Pre-Opening Cleaning/Testing (and Post-Opening Ongoing Monitoring)

  • Compliance with cleaning, disinfecting and testing protocols (and contracts) and with CDC, EPA, OSHA and state regulations and guidelines, including:
    • Air and Surface Testing
    • High Touch Points
    • Frequency/Maintenance
    • Green Cleaning
    • Safety Data Sheets for cleaning materials
    • Interior, Exterior (e.g., doors, loading/unloading areas, playground, etc.) and Transportation (e.g., buses)
    • Mask Protocols
  • Recurrent Cleaning
    • The “standard of care” for the scope and frequency of cleaning, disinfecting and testing is still unknown.
    • In any case, we recommend schools establish protocols for regular cleaning and sanitizing of space daily, between different groups of users to the extent possible and after use by any person showing symptoms of illness or who has tested positive.

Hierarchy of Controls

  • Under OSHA’s General Duty Clause, school leadership, as employers, have a duty to keep employees reasonably safe from recognized hazards.
    • This does not mean that an employer must provide a space free from exposure to every possible illness or potential injury.
    • OSHA is limited to employee safety, but the general principles certainly translate to student wellbeing.
  • When staff and students are inside, OSHA and NIOSH recommend instituting a hierarchy of controls.
    • The most effective controls are elimination and substitution—such as full remote learning. Although effective against reducing the spread of the virus, these top control categories may not be the best way to equitably and effectively teach students and should be limited to those situations where national, state or local government and health officials have ordered quarantines or shutdowns due to the extent of the pandemic or where necessary due to the health condition of an employee or student. Schools should have procedures in place to assess such requests.
  • Other tiers of controls need to be evaluated as part of a school reopening plan (listed in order of decreasing effectiveness).\
    • Engineering Controls — e.g., improved/added ventilation, plexiglass barriers, hand sanitizer stations and other opportunities/reminders for hygiene.
    • Administrative Controls — e.g., social distancing, cohorting, schedule modification and location changes including outdoor time.
    • PPE — face coverings and other personal protective equipment are the least effective control category in the “hierarchy” of controls, yet PPE has proven to be an effective tool to limit transfers of respiratory droplets and therefore the use of PPE should be a part of each school’s plan as appropriate. In particular, schools should develop and publicize a mask protocol.

Don’t Forget the “Regular” Facility Stuff

  • School buildings need frequent attention. Many were closed quickly in March and have sat largely idle and unoccupied for months. It is very important not to forget about regular facility maintenance, including:
    • HVAC filter inspection/replacement and system restart/cleaning
    • Mold and mildew inspections
    • Water system flushing (especially in older buildings that may have lead/copper concerns in the drinking water — a condition worsened with stagnant water in pipes).

(Potential) Liability Protection

  • Public schools, as government entities, are protected to some extent by governmental sovereign immunity. However, this is not an impenetrable shield and best SHE management practices should still be implemented to protect students, teachers and staff from unreasonable exposure to injury and illness.
  • Independent schools do not have the same “public” immunity but can mitigate legal liabilities by striving for compliance with guidelines established by public health officials such as the CDC and applicable reopening guidance documents from trusted sources (independent school organizations and occupational health/industrial hygiene entities).
  • COVID-specific liability protection:
    • At present, there is no federal liability protection for schools (yet). This may be addressed in a future Congressional relief package.
    • Some states (e.g., North Carolina, Oklahoma, Utah) have expanded liability protections for businesses and schools through executive order or legislation.

Please feel free to contact the authors or your Shipman & Goodwin contact with any questions and visit our dedicated COVID-19 page for more information.

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