School leaders and decision-makers all across the country are trying to make decisions about whether to open schools for in-person education, when to open schools, and how to open schools safely both for students and their faculty and staff. These decisions are all the more difficult because unfortunately, for many parts of the country, there is significant community spread of the virus, school boards and leaders for the most part are not public health experts, there are significant political pressures and there are liability risks.
There certainly is guidance available from the CDC and the American Academy of Pediatrics. Obviously, complying with that guidance will be of significant help in defending a liability lawsuit, whereas decisions to depart from that guidance will create greater risk. Further, a decision to depart from the guidance may create job security risks for those leaders who are employed or political risks for those who are elected if we have the kinds of outbreaks and illness that has occurred at summer camps or that ends up contributing to strained hospital capacity. But, even with the guidance, there will be many unanswered questions, and boards and leaders would be well-advised to seek additional guidance from local public health agencies and medical experts.
Even a decision to follow the guidance may be challenging, especially with the fact that face masks and face coverings (for ease, I will subsequently refer to both as “face masks” or “masks”) have unfortunately become a political, emotional, and philosophical issue that strongly divides us, despite wide-spread agreement among medical experts, scientists and public health organizations that face masks, if worn correctly and by a sufficiently large enough percentage of the population, will significantly reduce the transmission of the SARS-CoV-2 virus when it is not possible to physically distance. The challenges for school boards and leaders who cave to the pressure not to mandate masks are that they will potentially be under pressure from teachers’ unions or associations concerned about protecting teachers’ health and lives, and potentially significant liability risks as rules of evidence will generally not allow for experts to introduce these political, emotional and philosophical arguments that are not supported by science or the expert community at large to be introduced in court as a defense.
My best advice to school boards and leaders is to undertake your due diligence, examine the guidance from the CDC, AAP and other reputable public health and medical organizations and then ask the following questions of the medical and public health experts who are advising you on your reopening policies, as a key element of coming to the best policy for your particular school or school district is to be fully informed of the risks and benefits, and a key element of defense in a liability action is to show that you were diligent in asking and considering the advice of experts. It may be helpful to ask and have these questions answered on the record both to demonstrate to the public your diligence, but also to create a record for your potential defense.
- Does the degree of community spread that we are seeing in our communities significantly increase the risk of exposure and transmission of the virus in our classrooms and school buildings that would then be likely to increase illness among our school children and staff?
- While there is evidence that children, if infected, tend to experience less serious illness, have there been children of the ages of our school children who have experienced severe enough illness to require hospitalization?
- If so, is there any effective way that we can identify which of our students could potentially develop serious illness so that we can take additional precautions to protect those students? If so, what would those additional precautions be?
- Studies suggest that the majority of children who are infected remain asymptomatic. If so, will symptom checkers or temperature screenings be able to identify those students who might then pose a risk of attending classes and transmitting the virus?
- If we cannot identify these students and parents are not aware that their child is sick and therefore know to keep their child home from school, what are the most effective means to prevent an infected, but asymptomatic (or pre-symptomatic) child from transmitting the virus to staff and students?
- What lessons can we learn from the outbreaks at summer camps that are applicable to our school reopening?
- This fall and winter, like every school year before the coronavirus, children will be exposed to a number of respiratory viruses and we know that many of these will be transmitted among students. Plus, we fully expect to have another influenza epidemic in the US. So, at points in time, the school is likely to have a number of children with fevers, coughs and runny noses. Because of the high disease activity of coronavirus across many parts of the country and disruptions in the supply chain, current testing for coronavirus is quite commonly delayed and often taking as much as 1 – 2 weeks for test results to come back. Since the Trump Administration has not announced any new strategies to address this testing logjam, we might assume that testing will continue to be a challenge this fall. If we have children who are ill, but we have these delays in testing, how are we going to know whether one or more of these children has infection with the SARS-CoV-2 virus and whether classmates and their teacher may have been exposed? I assume that we cannot close the school or quarantine teachers and classmates every time a student has a cold until we can get test results back a week later to confirm that is the case. What would our action be?
- One of the concerns about school reopening is that children may be exposed to the virus and while they are likely not to suffer severe illness, they may take the virus home with them. Do we know what percentage of our school’s children live with or stay with a vulnerable adult? Are there additional precautions we need to take for these children?