General Recommendations
Since the beginning of the pandemic, CIC has offered the following general recommendations:
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Establish close coordination with your Local Health Official (LHO). Your LHO will be your county Public Health Department/Nurse for most school districts, while some municipalities will have the same. LHOs are the responsible official for issuing public health orders and monitoring COVID-19 statistics in your area. They are also a valuable resource for recommendations on your operations.
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Consult with your CIC Risk Management Consultant regarding any questions or concerns about COVID-19’s impact on your operations [find your CIC RM Consultant].
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Consult available guidance from federal and state resources, like the CDC, Wisconsin DHS, DPI, and DSPS.
As it relates to COVID-19 decision-making, the two questions we are asked most often are:
Do I have coverage for COVID-19?
Yes – your CIC policy does not specifically exclude pandemic flu – which results in claims/suits involving COVID-19 being covered. This coverage, however, is subject to the terms and conditions of the policy. One critical condition that could create an exception to coverage is if the district engages in or permits an activity that willfully violates any order/ordinance/law. Orders/ordinances/laws differ from mere guidance or recommendations from a regulatory body; however, it remains vital to monitor COVID-19 rulemaking at the state and federal level to determine if an order/ordinance/law has recently been implemented.
Does [any given situation] create a liability risk for the district?
Possibly – we do not yet have a legal test to district decision-making surrounding COVID-19. Earlier this year, the state granted immunity from COVID-19 liability to most legal entities, including school districts. This immunity comes with the exceptions of: reckless actions, wanton conduct, or intentional misconduct. The COVID-19 liability immunity is in addition to the other immunities granted to Wisconsin school districts, like discretionary immunity. Again, though, we still do not have a legal test to COVID-19 liability, especially taking into account the available immunities. As a result, districts should utilizing sound risk management and thoroughly review the situational risk and exposures surrounding the impact of COVID-19 on its operations and follow our general guidelines above.
Mask Decision-Making
Differing from last year, there is no statewide order requiring face masks in public. Absent local orders, school districts have the authority to decide whether or not to require the use of face masks by staff, students, and visitors while on school property. Earlier this year, CIC issued a white paper entitled, The State of Masks in Wisconsin School Districts, that provides helpful guidance on district policymaking surrounding the use of face masks.
CIC believes districts should evaluate their specific situation to determine what works best for their staff and students. We also believe it is crucial for districts to establish close coordination with their LHO and develop clear criteria for future decision-making based on school screening (if participating) and community transmission rates.
Masking on District Transportation
The CDC continues to mandate, via enforceable order, the use of face masks by drivers and passengers (subject to exemptions) on all forms of public transportation conveyance, including school buses, vans, and any other means of transportation that is not a private vehicle. This means that regardless of the district’s policy on the use of masks, passengers and drivers on buses school vehicles must wear a mask.
CIC understands the difficulty of communicating with parents and students regarding the potential of differing mask requirements between school transportation and while at the school building. However, to preserve coverage and the available immunities in the event of a claim or suit, CIC strongly recommends that districts follow the CDC order.
If your district contracts with a bus company for student transportation, it is essential to reinforce your district’s desire to follow the CDC order. You should also communicate with your contracted bus company regarding the procedure for handling violations and provide a stock of masks in each bus for students who attempt to board the bus without a mask.
Our defense counsel partners at Boardman & Clark, LLP have prepared a helpful legal memo on this topic.
Employer-Mandated Vaccinations
Many Wisconsin residents have taken advantage of the wide distribution of the COVID-19 vaccine, but just under 50% of the population remains unvaccinated. If your district is considering requiring the COVID-19 vaccine for your employees, you must take a number of considerations into account. Our defense counsel partners at Lindner & Marsack, S.C. helped us to prepare a helpful Q&A white paper on this topic.
