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?

45 Pages Posted: 1 Sep 2020 Last revised: 24 Oct 2020

See all articles by Mark L. Jones

Mark L. Jones

Mercer University

Cathren Page

Mercer University - Walter F. George School of Law

Suzianne D. Painter-Thorne

Mercer University School of Law

Gary J. Simson

Cornell University - Law School; Mercer University - Walter F. George School of Law

Date Written: September 1, 2020

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.

Keywords: coronavirus, pandemic, colleges, universities, CDC, in-person teaching, online teaching, health, American with Disabilities Act, Age Discrimination in Employment Act, age discrimination, disability discrimination, intentional infliction of emotional distress, higher education

Suggested Citation

Jones, Mark L. and Page, Cathren and Painter-Thorne, Suzianne Desiree and Simson, Gary J. and Simson, Gary J., 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? (September 1, 2020). Pepperdine Law Review, Vol. 48, No. 3, 2021, Available at SSRN: https://ssrn.com/abstract=3684190 or http://dx.doi.org/10.2139/ssrn.3684190

Mark L. Jones

Mercer University ( email )

1400 Coleman Avenue
Atlanta, GA 30341-4155
United States

Cathren Page

Mercer University - Walter F. George School of Law ( email )

1021 Georgia Ave
Macon, GA 31207-0001
United States

Suzianne Desiree Painter-Thorne

Mercer University School of Law ( email )

1021 Georgia Avenue
Macon, GA 31207
United States
478-301-2647 (Phone)

Gary J. Simson (Contact Author)

Cornell University - Law School

Myron Taylor Hall
Cornell University
Ithaca, NY 14853
United States

Mercer University - Walter F. George School of Law ( email )

1021 Georgia Avenue
Macon, GA 31207
United States
478-301-2628 (Phone)

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