As you are planning a return to in-person instruction for many of our students, recent events have muddied the waters as far as what liability protections schools actually have. The confusion has arisen because of a recent state decision making COVID-19 metrics “advisory” rather than mandatory.
I write today to urge you to move cautiously. A recent outside legal opinion prepared at our request has concluded that schools would most likely lose the liability protections we recently won if they opened contrary to the state’s metrics – even though such metrics are just “advisory.”
Here is the background: OSBA and its partners were recently successful at getting HB 4402 passed during the December 2020 emergency legislative session. HB 4402 became effective Dec. 23, and provides school districts, charter schools, community colleges and ESDs with limited liability protection for COVID-19 related claims. For a school to benefit from HB 4402’s limited liability protection, it must be in compliance with all current “COVID-19 Emergency Rules.” This includes all guidance issued by the Oregon Department of Education and the Oregon Health Authority.
The same day HB 4402 became effective, Gov. Brown sent a letter to ODE and OHA expressing her hope “that more Oregon schools, especially elementary schools, will transition to in-person instruction by February 15, 2021.” In the letter she states that “effective January 1, 2021, Oregon’s COVID-19 Health Metrics for Returning to In-Person Instruction become advisory rather than mandatory” and that “moving forward, the decision to resume in-person instruction must be made locally, district by district, school by school.” Finally, she directs “ODE to collaborate with OHA to align the Ready Schools, Safe Learners guidance and Oregon OSHA rules to ensure all necessary health and safety procedures and protocols are included to allow maximum access to in-person instruction in keeping with reasonable health and safety standards.” Updated in-person instruction guidance is expected from ODE by Jan. 19.
Even with that new guidance, however, schools may not be able to open for in-person instruction for all students. These will be decisions that school districts will need to make looking at whatever changes are made to the guidance and working to ensure their students, staff, and community are safe. This will take significant cooperation and collaboration at the local level working with health officials, employee groups and the broader community.
We encourage schools to continue to comply with all current guidance when making reopening decisions. A school would be at risk of losing the protections of HB 4402 if it were to open for in-person instruction and not be in compliance with ODE or OHA advisory or mandatory guidance. OSBA is working with the Governor’s Office and ODE to rewrite the “Ready Schools, Safe Learners” guidance to maintain the COVID-19 liability protections under HB 4402 as schools prepare a safe return to in-person instruction.
Please keep in mind that while PACE liability coverage provides for limited communicable disease defense costs, it excludes actual damages that relate to or result from any alleged or actual transmission of a communicable disease, including COVID-19. This exclusion also applies to any testing for communicable disease and vaccine administration. The communicable disease defense coverage is capped at $50,000 per member; PACE has budgeted a total of $1 million for this effort.
We will prepare an FAQ with additional information on HB 4402, in-person instruction, vaccine information and PACE liability coverage in the coming days, and will post that information on the PACE website.
I want to assure you that OSBA will continue to advocate for a safe move to in-person instruction and for COVID-19 liability protection for schools. Please do not hesitate to reach out to me directly with questions or concerns.