It's Alright, Ma, It's Life and Life Only: Have Universities Been Meeting Their Legal Obligations to High-Risk Faculty During the Pandemic?

64 Pages Posted: 26 Aug 2021

See all articles by Gary J. Simson

Gary J. Simson

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

Mark L. Jones

Mercer University

Cathren Page

Mercer University - Walter F. George School of Law

Suzianne D. Painter-Thorne

Mercer University School of Law

Date Written: July 8, 2021

Abstract

Even those universities most firmly committed to returning to in-person instruction in fall semester 2020 recognized that for health reasons some exceptions would need to be made. The CDC had identified two groups – people age sixty-five and over, and people with certain medical conditions – as persons “at increased risk of severe illness from COVID-19,” and it had spelled out various special precautions they should take to avoid contracting the virus. Given the CDC’s unique stature, universities very reasonably could have been expected to grant exceptions to faculty falling into either group, but that’s not what many universities did.

We argue that, properly understood, four separate legal sources required universities to exempt high-risk faculty in the past academic year 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 torts restatement – protection from intentional infliction of physical harm, and protection from intentional infliction of emotional distress.

A high-risk faculty member who was denied an exemption may well find this Article helpful in trying to decide whether to bring suit. Our primary objective in writing the Article, however, is not to encourage people to sue. Instead, it is to drive home to universities that, going forward, they need to be considerably more conscious of, and conscientious about, their legal obligations than many of them were in formulating policies affecting high-risk faculty in the past academic year. And by “going forward,” we mean not only for the remainder of this pandemic, but also for any crises that the future may hold.

Keywords: pandemic, coronavirus, covid, Americans with Disabilities Act, ADA, Age Discrimination in Employment Act, ADEA, intentional infliction of emotional distress, universities, colleges, higher education, health, health law, high risk, faculty rights, virus, CDC, online education, virtual learning

Suggested Citation

Simson, Gary J. and Simson, Gary J. and Jones, Mark L. and Page, Cathren and Painter-Thorne, Suzianne Desiree, It's Alright, Ma, It's Life and Life Only: Have Universities Been Meeting Their Legal Obligations to High-Risk Faculty During the Pandemic? (July 8, 2021). Pepperdine Law Review, Vol. 48, No. 3, 2021, Available at SSRN: https://ssrn.com/abstract=3910750

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)

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)

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