COVID-19 and Privacy, Special Reports

Unenforceable Urban Legend?

Teacher Waivers for COVID Raise Privacy Fears as Schools Re-Open for New Year

By Samantha Cleaver

First of a series.

School districts across the country have spent the summer hedging bets on how the 2020-21 year would begin amid COVID-19.

Now, as students fill backpacks to return to school in-person or online, Digital Privacy News is examining how this school year will impact students’ and teachers’ privacy.

“We are behind the eight-ball,” said Rick Hess of the American Enterprise Institute. “These are conversations we should have been facilitating in May and June.”

In this three-day series, Digital Privacy News examines issues that have emerged at the start of this school year.

Today’s report addresses liability waivers that teachers are being asked to sign to protect districts should they or their students contract COVID.

As schools start to re-open and teachers return, school boards, districts, even Congress are thinking about liability.

“K-12 educators are worried about returning to schools with no safety standards.”

National Education Association President Lily Eskelsen García.

In the Senate, the proposed HEALS Act includes language that would protect schools from lawsuits related to openings during COVID-19.

But one way that local schools have tried to address liability is through waivers.

For instance, parents and coaches were presented with liability waivers over the summer in Volusia County, Fla. As schools ramped up in St. Petersburg, parents were asked to sign waivers to attend the Catholic Diocese’s schools. Questions had arisen about whether teachers would be asked to sign waivers as well.

Gallagher and Associates, a St. Petersburg law firm, has seen an uptick in teachers asking about waivers that would release school boards or districts from liability if they were to get sick with COVID while at work.

“We’re seeing a lot of school districts and boards using waivers and releases for teachers pre-emptively,” said Charles Gallagher III, the firm’s managing partner. “It’s an unknown area of the pandemic.”

National Education Association (NEA) President Lily Eskelsen García told Digital Privacy News in a statement: “K-12 educators are worried about returning to schools with no safety standards.

“Educators believe they are viewed as expendable, and they feel forced to choose between their jobs and the health of themselves and their loved ones.”

The potential of signing a waiver to return to work is just one way that teachers’ privacy is front and center this back-to-school season.

Currently, the waivers are not ubiquitous, or even common, but the idea does raise questions for teachers — namely about what type of health data will teachers be asked to disclose this school year.

Where the Power Lies

In Missouri, Kyle Farmer, staff attorney for the Missouri State Teachers Association (MSTA), said he had fielded questions about liability waivers for teachers, but had not seen any actual documents.

“Right now, it’s a bit of an urban legend,” he said.

Still, said Farmer, asking about waivers during COVID was not unreasonable, “because it is something that employers have done and are going to do.”

“We’re seeing a lot of school districts and boards using waivers and releases for teachers pre-emptively.”

Charles Gallagher III, Gallagher and Associates law firm, Fla.

Even if they are not seeing many waivers, the NEA, MSTA and Gallagher and Associates agreed that coronavirus waivers for teachers were unenforceable.

“We don’t think they’re enforceable at all,” Farmer told Digital Privacy News. “A lot of it comes down to bargaining power.

“School districts have all the power. Teachers have none.”

Also, teachers must understand the risks before signing them away, Gallagher said — and with COVID, right now, people still don’t know the risk of returning to school.

“It’s fair to say, we don’t know the full extent of contracting COVID,” Gallagher told Digital Privacy News. “There are so many collateral risks, people cannot say they understand the risk.”

Privacy and Waivers

Regardless of the release, if a teacher tested positive for the virus, they must share the information with their employer.

“This is a situation where we have to waive privacy rights for the health of the public,” said MSTA’s Farmer.

In some districts, officials also have asked school staff to report when they travel out of the area, he said. This presents a concern because it’s unclear how that information would be used.

“Obviously,” said Farmer, “the district needs to keep it to themselves, and not share it.”

No HIPPA Protections

However, health information collected by schools is not covered by HIPPA, the federal health-privacy law. No federal laws stipulate how teachers’ health data should be protected, outside of general sharing rules.

“School districts have all the power. Teachers have none.”

Kyle Farmer, Missouri State Teachers’ Association.

In general, Farmer told Digital Privacy News, “we should expect school districts to share information about exposure … without naming names or sharing identifiable information.”

Still, school communities can be small — and if a COVID-19 case arises, it may be obvious which teacher was exposed, Farmer said. There is no way to protect from that.

Gallagher said another privacy issue could be if a teacher had a medical issue that influenced their decision to sign a waiver. Then, they must decide whether to disclose that concern to a school or district board.

The question, Gallagher posed, is “do I put my health care issues out there for them to know?”

To Sign or Not?

Signing a liability waiver is a personal decision, Gallagher told Digital Privacy News.

If a teacher does not sign a release, the school or district must decide if they can teach. As teachers prepared to return to school last month, at least one district, Washoe County, Nev., reassured them that they could voice concerns without fear of retaliation.

Presenting a waiver may not be in the district’s best interest, as it would set a bad precedent for the school year and discourage teachers from returning, experts said.

“Instead of focusing on liability waivers,” NEA President García said, “school districts should be ensuring that they follow the (Centers for Disease Control and Prevention’s) guidelines on when and how schools should reopen.”

Farmer pointed out that, although the pandemic feels new, we’ve seen much of this before.

“We’ve been in instances where our kids are at risk,” Farmer told Digital Privacy News, “and teachers have a duty to protect kids in their class.” 

Wednesday: Issues With Recording and Sharing Lessons.

Samantha Cleaver is an education writer in Charlotte, N.C.

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