Dear Legal Mailbag:

As the statewide mask mandate comes to an end, my teachers and I are confused as to where we all stand. As the principal of an elementary school, I have always given my teachers as much autonomy as I can. Teachers are responsible for classroom management as well as for student achievement, and it is only fair that teachers get to set the rules for the classrooms.

I estimate that half of the teachers in my building would like to continue to require masks, and the other half can’t wait to shed their masks. Given how evenly split sentiment is, I want to leave it up to teachers whether they will require masks in their classrooms. But that leads me to my question.

If I give teachers the choice whether to require students in their classes to wear masks, a teacher chooses not to impose such a requirement, and a student in such a class gets COVID, will that teacher be personally liable? I don’t want to let my teachers do something that could bite them in the butt later.

Thinking Ahead

Dear Thinking:

Liability is often on teachers’ minds, but Legal Mailbag cannot cite a single example in Connecticut legal history when a teacher has made a good faith mistake in doing his or her job and has been held personally liable. But before we talk about liability, Legal Mailbag must ask the threshold question – why do you think that an individual teacher could impose a classroom mask mandate?

As you may know, Executive Order 9 authorized the Commissioner of Education and Commissioner of Early Childhood to issue binding guidance concerning the wearing of masks in the public schools, and Executive Order 13A authorized the Connecticut Department of Public Health to issue binding guidance regarding the wearing of masks in public spaces, including schools. As you must know, both agencies issued guidance requiring the wearing of masks in school buildings. These Executive Orders were set to expire on February 15, but Special Act 22-1, which became effective on February 15, extends until June 30 the provisions in these Executive Orders requiring the wearing of masks in schools. However, Special Act 22-1 also authorizes the Commissioner of Education, the Commissioner of Early Childhood and the Commissioner of Public Health to end the mask requirements as they see fit, albeit no sooner than February 28 (Monday).

We fully expect that the binding guidance requiring masks in schools will terminate on February 28. At that point, local and regional school districts, acting through their boards of education or their superintendents, will have the discretion to require masks. However, Legal Mailbag contemplates that these decisions will be made at the district level, not by individual teachers or principals. The authority for a school district to require masks derives, inter alia, from Conn. Gen. Stat. § 10-220, which gives local and regional boards of education “care, maintenance and operation of buildings, lands, apparatus and other property used for school purposes.” As the chief executive officer of the school board per Conn. Gen. Stat. § 10-157, the superintendent may exercise this authority. However, except in the unlikely circumstance that a board of education would delegate that authority to individual principals or teachers, these decisions will be made at the district level.

Irrespective of who makes the decision, your question remains – will school officials who do not institute a mask mandate after the state-level mandate has been dropped be liable if a student or teacher contracts COVID? While anything is possible when it comes to legal claims, it is highly unlikely that liability would ever be imposed, for the reasons described below. Moreover, it is certain that there would not be any personal liability – for board of education members, for superintendents, for principals, or for teachers – when people act in good faith in this situation or others.

Liability, if any, would be imposed under a negligence theory. However, to prevail on a claim of negligence, a plaintiff has to establish the following elements – a duty of care on the part of the defendant, a breach of that duty by the defendant, an injury caused by the breach, which injury was foreseeable. While school officials certainly have a duty of care to keep students and others safe in the school setting, once public health officials drop the mask mandate, it is hard to imagine how a court would find that school officials’ failure independently to impose a mask mandate would be a breach of duty. Moreover, it would also be very difficult for a plaintiff to show causation, i.e., that not requiring masks in school somehow “caused” the plaintiff to contract COVID, given that one can contract COVID almost anywhere, not just in school.

If somehow a plaintiff prevailed on these points, the plaintiff would then have to get past another significant hurdle. When school officials exercise discretion in performing their public duties, they are typically protected by governmental immunity. To be sure, governmental immunity can be lost in limited circumstances, as for example when a danger is so obvious that the governmental actor had a clear and unequivocal duty to act immediately to prevent the harm. Haynes v. Middletown, 314 Conn. 303 (2014). A decision not to mandate masks independently after state officials have lifted the mandate, however, would certainly not be such a circumstance.

Finally, we must always keep in mind the robust protections of the indemnification statute. School board members, school employees, and even volunteers in certain situations, who serve their communities are protected against any personal liability arising from a claim made against them for actions taken (and failures to take action) in the scope of their responsibilities. Significantly, that protection includes payment of any related legal fees. As long as school officials act within the scope of their responsibilities and not in a wanton, reckless or malicious manner, Connecticut General Statutes, Section 10-235 protects them from personal liability.

Originally appeared in the CAS Weekly Newsletter.

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Photo of Thomas B. Mooney Thomas B. Mooney

Tom is chair emeritus of the School Law Practice Group and is active in all areas of school law, including labor negotiations for certified and non-certified staff, teacher tenure proceedings, grievance arbitration, freedom of information hearings, student disciplinary matters, special education disputes and…

Tom is chair emeritus of the School Law Practice Group and is active in all areas of school law, including labor negotiations for certified and non-certified staff, teacher tenure proceedings, grievance arbitration, freedom of information hearings, student disciplinary matters, special education disputes and all other legal proceedings involving boards of education. Tom is the author of A Practical Guide to Connecticut School Law (9th Edition, 2018), a comprehensive treatise on Connecticut school law, and two columns, “See You in Court!,” which appears in the CABE Journal, and “Legal Mailbag,” which appears in the CAS Bulletin.