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? (preprint)

ABSTRACT

Because there is no law specifically addressing colleges’ and universities’ legal obligations to allow faculty for health reasons to opt for online, rather than in-person, teaching during the coronavirus pandemic, colleges, universities, and their faculties generally seem to be proceeding on the assumption that any such legal obligations are no more than minimal. This Article challenges that widespread assumption and argues that colleges and universities in fact have very substantial legal obligations in this regard. We focus on the group of faculty whom we 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, our 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, diabetes, hypertension, pregnancy, and more. We argue 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. We hope our arguments will provide college and university leaders with a perspective that will prompt them to recognize the great importance of adopting an exemption policy that at a minimum covers high-risk faculty. Perhaps they would adopt such a policy simply to avoid possible legal liability. Ideally, however, they would do so at least in part 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 their institution.