COVID-19 litigation has begun across the nation, prompting concerns about liability exposure for colleges and universities. Although the federal SAFE TO WORK Act, which was introduced in the Senate on July 27, 2020, would have provided a heightened burden of proof and pleading requirements for COVID-19 claims for alleged exposure to the virus, the Act gained no traction and was never passed. The most recent round of federal stimulus legislation passed in December similarly contained no immunity protections for any sector.  

Despite the lack of current federal action, numerous states have provided civil immunity protections that apply to institutions of higher education, such as Georgia, Michigan, North Carolina and Ohio. Generally, these protections shield institutions against liability in COVID-19 lawsuits unless it is established that the exposure or transmission of the virus was due to reckless, intentional, willful or wanton misconduct on the part of the institution against whom the action is brought. Additionally, some states afford civil immunity protections if the institution substantially complied with applicable federal, state and local public health guidance related to COVID-19. While most of these protections apply to exposure and transmission claims, at least one state, North Carolina, has passed statutory protections that specifically shield institutions from claims arising out of or in connection with tuition or fees paid to the institution during the pandemic. 

Institutions should determine whether their state has enacted civil immunity protections for COVID-19 claims, whether they are applicable to their institution and if there are any steps that need to be taken to ensure those protections can be invoked as a defense to any claims. In states where legislation has not been passed, we strongly encourage institutions to lobby their state officials in upcoming legislative sessions for such protections. Following virus-related legal requirements and the guidance of the CDC and state and local health officials, however, is the best protection against pandemic claims, even if your state has not passed immunity legislation.