New article explores legal bases for exemptions from in-person teaching during the Coronavirus pandemic

From Gary Simson at Mercer Law:

In It’s Alright, Ma, It’s Life and Life Only: Are Colleges and Universities Legally Obligated during the Coronavirus Pandemic to Exempt High-Risk Faculty from In-Person Teaching Requirements?, Mercer Law Professors Mark Jones, Cathren Page, Sue Painter-Thorne, and Gary Simson examine colleges’ and universities’ legal obligations to allow faculty to opt for online, rather than in-person, teaching during this pandemic. They focus on the group of faculty whom they believe colleges and universities have the clearest legal obligation to protect – those who, according to the Centers for Disease Control and Prevention, appear to be most vulnerable to getting seriously ill or even dying if they contract the coronavirus. In the language of the CDC, their focus is faculty members “at increased risk of severe illness from COVID-19,” which, according to the CDC, means anyone who has reached age 65 or who has one of various medical conditions, including cancer, chronic kidney disease, pregnancy, hypertension, and more.

The authors maintain that four separate legal sources are best understood as requiring colleges and universities to exempt high-risk faculty from any in-person teaching requirement. Two of the four sources are federal statutes that qualify as major statements of national policy – the Americans with Disabilities Act and the Age Discrimination in Employment Act.  The other two sources are important state-law doctrines with strong support in the American Law Institute’s most recent restatement of the law of torts – protection from intentional infliction of physical harm, and protection from intentional infliction of emotional distress. The authors express the hope that their arguments will persuade college and university leaders to exempt high-risk faculty not simply to avoid possible legal liability but also out of a recognition that a college or university policy at odds with legal sources as weighty as the four discussed speaks very poorly for the institutions those leaders are charged with leading. 

For the article, see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3684190.

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