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COVID-19 Waivers and the Return to School

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COVID-19 Waivers and the Return to School

Schools reopening has sparked widespread confusion amongst parents and students alike regarding COVID-19 liability waivers, schedule options, and extracurriculars. It’s crucial to know your legal rights and responsibilities when making decisions for the upcoming school year.

Q: Am I required to sign a liability waiver ahead of the 2020-2021 school year? If I don’t sign the COVID-19 waiver, can my child still attend school?

A: That probably depends on whether the COVID-19 liability waiver you are being asked to sign is for extracurricular activities or for compulsory attendance.  

Waivers cannot go against public policy. Even where waivers are appropriate (as in for extracurriculars, see below), they cannot release willful and wanton behavior or gross negligence.

Extracurricular activities. The recent news that Hazelwood required parents to sign a “death waiver” if their child contracted COVID-19 certainly made a splash in the headlines. Buried in the lede was the fact that the waivers were only for extracurricular summer sports.

Extracurriculars are a privilege, not a right. Liability waivers (including for serious injury and death) are quite common, especially when the activity involved has known risks (i.e., sports, cheerleading, etc.). Including COVID-19 in what is otherwise just a standard liability waiver has a decent chance of surviving legal review.

Compulsory attendance. The legal issues are much murkier if schools ask parents to sign a liability waiver before their child can return to in-person school. Missouri law has established certain educational rights and responsibilities.

  • A free education is a right in both Missouri and Illinois. Both the Missouri Constitution and the Illinois Constitution guarantee a free public education for students.
  • School attendance is mandatory. Missouri law requires compulsory (i.e., mandatory) attendance at a public, private, or parochial school for all children between the ages of 7 and 17. In Illinois, compulsory attendance is required for children between the ages of 6 and 17.

It seems unlikely that a school can legally strip a child’s right to an education in the absence of a waiver. Likewise, it seems unfair to demand parents either sign a waiver or face prosecution for not sending their children to school.

What about private or parochial schools? Although students have a right to a free public education, there is no right to private or parochial schooling. Can those schools demand a COVID-19 liability waiver as a condition of attending classes?

That is harder to quantify. Private schools can argue that they are not demanding a waiver of a right under state law. Parents can argue they still have a legal obligation to send their child to school and that refusing to sign the waiver still puts them at risk of prosecution.

There may also be contract issues. If a parent has already fulfilled their contractual obligations by paying tuition, fees, and deposits, can the school demand a new, last-minute requirement like a COVID waiver? Where is the consideration for that?

There are no quick answers for these questions.

Q: What if my child is required to wear PPE to attend school?

A: That is probably fine from a legal standpoint. Although there were questions at the beginning of the outbreak about whether masks were effective, those questions have largely been laid to rest. The evidence over the last few months shows that wearing masks significantly reduces the risk of transmission, especially when combined with other preventative measures such as hand washing and social distancing.

Further, although recent studies show that kids younger than 10 transmit to others less often than adults do, the risk is not zero. Children between the ages of 10 and 19 spread the virus at least as well as adults do.

Masks are not invasive or expensive. Schools already have mandatory dress codes that students must comply with in order to attend school. It seems entirely reasonable for them to require masks as well.

Q: If my school or district is testing for the coronavirus onsite, is my child required to take a test prior to returning to school?

A: Nobody really knows. As a parent, this question raises all kinds of questions. Are the tests free? If not, how much do they cost? What if a parent cannot afford the test? Who is administering it? How long will results take?

There may also be concerns with the type of test being given. No-touch temperature checks are significantly less invasive than a nasal swab. On the other hand, temperature checks don’t test for the virus, they only look for a specific symptom.

Q. What medical information am I required by law to disclose prior to a return to school?

State laws require students to be up to date on their immunizations. Parents can ask for a religious or medical exemption to having their child immunized. However, unimmunized children may be subject to exclusion from school when outbreaks of vaccine-preventable diseases occur. Given that there is currently no vaccine available for COVID-19, this exception may not apply.

Q. Am I legally required to pay a fine if my child’s school is open but I choose not to send them back out of concern?

That may depend on the reason for the concerns, and whether the school offers remote alternatives to in-classroom attendance.

  • Is your child or somebody in your home in a high-risk group? Speak with school administrators and teachers to see if accommodations can be made for special circumstances.
  • Does the school offer remote learning alternatives? Many schools are trying to be as flexible as they can during the pandemic and have procedures in place for remote learning.

To be clear, most reopening guidelines explicitly state that keeping a child home because they are showing symptoms is not only allowed, it is encouraged.

Q. What do parents do if their household lacks access to technology needed for remote learning?

Reach out to schools and school districts directly to access any available resources. Nothing has highlighted the impact of the digital divide like this pandemic. Some school districts will provide technology like laptops or tablets to students for remote learning. Internet providers may offer free or reduced-cost broadband for households.

Q: Looking to the future: Will my child be required to get a vaccine for COVID-19?

A: It is too soon to say. At the moment, there is no vaccination available for COVID-19. Should one become readily available, it might be added to the list of childhood vaccinations required for enrollment. Or, it might be treated like a flu vaccine—encouraged but not required.

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