By Heidi Li Feldman
The more individuals must rely on their own judgment and effort to protect themselves from disease, the more they need information regarding the possibility of exposure to the cause of the disease.
This simple proposition, combined with changes in how governments and institutions are approaching COVID, means that university faculty should rethink their role in keeping their students informed about COVID cases among class members. To satisfy their legal obligations to protect students from harm, faculty must consider whether safeguarding their students from incurring COVID in their classrooms necessitates sharing such information. Fulfilling their legal duties to students may even require faculty to disregard administrative prohibitions against disseminating news of COVID cases in the class.
At this point in the pandemic, most universities and colleges have followed the rest of American society into an “every-person-for-herself” approach to avoiding COVID infections. Cued by political leaders, the Centers for Disease Control, and state and local governments, colleges and universities have circumscribed or dropped mask mandates, instead urging the maskless to be kind to and tolerant of those on campus who continue to mask. Per CDC recommendations, schools have relaxed isolation and quarantine requirements. Despite the increased likelihood of transmission when preventative measures are scaled back, mandatory, regular campus-based COVID testing has been discontinued, undercutting schools’ ability to contact trace. Universities and colleges thus no longer function as central clearinghouses for compiling and sharing information about specific COVID cases; nor can they provide accurate information about aggregate numbers of COVID cases among faculty, staff, and students.
When students must miss class, they sometimes alert their instructors, out of courtesy or a desire to have the session recorded; or to set up a meeting for later in the semester; or to comply with giving required notice of absence. Students often volunteer the reason for absence, including that they have tested positive for or have symptoms of COVID.
This means that, at least sometimes, a faculty member teaching a course will be the only person capable of readily communicating with the entire class about known COVID cases among class members.
When a faculty member thus learns a student in one of his classes has COVID, should he tell the group? From the perspective of tort law, the question is whether, in these circumstances, a reasonable instructor of ordinary prudence, acting with due regard for the safety of others, would inform their class. This question will typically be answered by a jury if a student who falls ill with COVID brings suit against a faculty member. No such lawsuits have yet been reported, but with COVID cases on campus spiking, they may well arise. Faculty should consider how the situation would look to a jury if a student suffers significant financial loss or medical injury from COVID and can establish that her illness was more likely than not contracted through attending class in rooms with infected classmates, and the faculty member knew students in the class were sick with COVID but did not alert the group.
COVID remains a disruptive and potentially serious disease even for those relatively unlikely to become severely ill. COVID has numerous medium and long-term negative health effects for a significant number of people. These are not fully known or understood, but seem to include heart disease and neurological damage sometimes as debilitating as brain fog.
University classrooms have been and are ideal settings for the transmission of viral aerosols like those that spread COVID-19. Through speaking and breathing, infected students and instructors expel aerosols formed in the upper respiratory tract, which is where COVID infections start. Even those with asymptomatic infections aspirate the virus. Once in the air, others can inhale those particles and become infected themselves. Classes typically last anywhere from forty-five minutes to three hours, and students move from classroom to classroom throughout the day, where infections can spread further.
With the ease email affords, a failure to pass along information about COVID cases among class members could seem like a missed undemanding, low-cost opportunity to enable students to make meaningful choices about their own self-protection.
Taken together, the probability and severity of harms due to COVID, the ease of transmission in university classrooms, and the handiness of email might well persuade a jury that a reasonable person of ordinary prudence, acting with due regard for the safety of others, would pass along information about COVID cases among class members, especially when there are no other institutional mechanisms for gathering and sharing this information.
Even if a university bans faculty from alerting their classes, a jury could still decide that a reasonably prudent and careful instructor would disregard such a rule and tell students anyway. In any event, faculty should not assume that just keeping mum about known cases of COVID is legally acceptable. Faculty should at least tell their classes about any university ban on their sharing information about class members’ COVID cases so that students know they cannot count on professors to provide information relevant to deciding upon precautions to take against getting COVID in the classroom.
Some universities suggest or imply that bans on faculty informing their students rest on legal prohibitions on the collection and dissemination of personal health information. The grounds for these suggestions are unclear, to say the least, particularly when a student voluntarily discloses information to a professor, and the professor preserves anonymity when conveying to the group that a fellow student has COVID. In fact, universities may be directly liable themselves in tort suits precisely for stopping faculty from telling students about COVID cases among class members. Further, to the extent that university prohibitions on faculty informing students only serve a university’s financial self-interest in having everybody on campus as much as possible, the prohibitions evince the sort of egregiously irresponsible conduct that can give lead to punitive damage awards.
Once universities adopt the position that students should take responsibility for protecting themselves from COVID to whatever degree they choose to, it would seem sensible for universities to collect and provide solid information about the occurrence and prevalence of COVID cases on campus. But universities have largely abdicated this role. Faculty must realize they can be held responsible for not picking up the slack, at least when they fail to take simple, uncomplicated steps like passing along information that class members are sick with COVID. Universities should not assume that because faculty may be held legally accountable for failing to alert classes, universities themselves will not be responsible for damage awards arising from faculty silence. Universities, like other employers, are vicariously liable for the torts of their employees. Universities therefore may ultimately have to pay damages awarded against faculty who fail to tell students in their courses about classmates’ COVID cases.
Heidi Li Feldman is Professor of Law at Georgetown University Law Center.
