See you in court? The possible legal issues surrounding campus re-openings

Plus, a local epidemiologist explains the job of a contact tracer

Good morning, and happy Tuesday! On this pre-pandemic day last year, people were celebrating summer with food, music, and art in Bancroft Park for the Old Colorado City WestFest. (Organizers have postponed this year’s event until 2021). 

Today, Colorado College political science professor and legal eagle Doug Edlin runs us through potential legal scenarios for when campuses reopen. Then, El Paso County Public Health epidemiologist Haley Zachary walks us through what it’s like to be a local contact-tracer.

🚨 ACTION: We’re collecting opinions from CC staff for a survey about work environments and the college’s pandemic response. If you’re a staff member at CC, take the survey here, and be on the lookout for a future newsletter with our findings. If you know a CC staff member, please send them this survey.

➡️ICYMI: Yesterday, our resident microbiologist gave her weekly COVID-19 forecast for El Paso County and discussed coronavirus mutations and vaccination.

Liability & Lawsuits: CC Professor Doug Edlin breaks down the legal implications of reopening campuses

NOTE: These statements represent his own opinions and not necessarily those of Colorado College.

Over Zoom recently, The CC COVID-19 Reporting Project caught up with political science professor Doug Edlin. He teaches courses on law and judicial systems at Colorado College. We thought he’d be a solid source to explain what obligations higher-ed institutions have to students, faculty, and staff when campuses reopen. Here are the highlights from our conversation.

📝 What safety pledges or contracts might mean for people wishing to return to campus

Background: In preparation for returning to in-person learning for the fall, some higher-ed institutions have created documents for students to sign before they come back to campus. These agreements include provisions for self-monitoring and reporting symptoms, abiding by guidelines for wearing masks, and agreeing to limit travel and gatherings off-campus. Ohio State University recently allowed football players to return to campus, but first asked them to sign the “Buckeye Pledge,” which acknowledges their risk for COVID-19 and requires them to undergo testing. Some institutions are lobbying for immunity from potential lawsuits that could arise from reopening in the fall. 

Doug Edlin: “They can call it what they want. What they’re really talking about is a liability waiver. That’s what the schools I think are interested in, which makes lots of sense. Whether that’s enforceable is another one of those things we don't know the answer to. You can’t anticipate how COVID will be interpreted later by a court in terms of a duty of care, or reasonable action on the part of CC. In general, I would say, as long as the college is complying with the applicable federal and state guidelines for COVID-19, at the time, the college would have a very reasonable and probably strong case that it acted in accordance with the law, and so its actions were therefore reasonable.” 

💵 What about those lawsuits over tuition refunds? 

Background: After colleges and universities transitioned to online learning en masse in reaction to the coronavirus outbreak, some students are saying, “Wait, this isn’t what I paid for” and are suing their institutions for partial tuition refunds, among other fee reimbursements. Johns Hopkins University, the University of Florida, Duke University, Harvard University, and the University of California, Berkeley are just some of the schools caught up in class-action lawsuits. 

Edlin: “This depends on how people conceptualize the relationship between students and their schools. Over the last decade, there’s increasingly been a trend to look at that in contractual terms. We made an agreement: we pay you money, you give us an education ... If we think about it more as a trust or something along those lines where everyone is part of a community that benefits all of us together, then we all suffer in a certain way when we can’t all be together, but we’re all suffering in kind of the same way so it doesn’t create an adversarial relationship — in this sense, between the college and the college’s students.” 

🏘 What role might the college have in regulating off-campus activities? 

Background: In Boulder, Colorado, some public health officials are blaming parties hosted by students at the University of Colorado Boulder for a recent spike in COVID-19 cases. At St. Olaf College in Minnesota, every student, faculty, and staff member has to sign a community pledge with a provision about this: “I will avoid crowded places and avoid mass gatherings on and off campus.”

Edlin: “CC is responsible for what happens on its campus and on the property it owns. But in general, CC would not be responsible for what happens in an off-campus apartment. There are exceptions to that. At some schools, there are certain kinds of harm that occur where, as long as the student is a student of CC, CC can potentially be responsible for protecting that student from harm or investigating the harm that may have happened to them.”

🚧 What obligations do higher-ed institutions have to protect employees? 

Background: CC employees who can work from home are encouraged to do so until Aug. 1. When they return to work, the Department of Labor has issued guidelines for workplace safety protocols, including how and when to wear personal protective equipment, and how frequently to clean or disinfect workspaces. In addition to existing protections for employees with disabilities, the Family and Medical Leave Act provides up to 12 weeks of unpaid leave to care for an immediate family member or to take leave because the individual has a “serious health condition.” The Families First Coronavirus Response Act allows employees to take a certain amount of paid leave if they are quarantined, caring for someone who is quarantined, providing childcare because of COVID-19 related closures, or “experiencing a substantially similar condition.” 

Edlin: “Is CC fulfilling its obligation to make its property reasonably safe for anyone who was invited to come onto that property? I would include students and employees. Where it might potentially become a little bit different, is a situation where there are federal or state statutes about workplace safety ... There are different legal issues that were raised ... one is workplace safety when you’re on the job. Another one is whether people who may be immunocompromised for example, can be entitled to protection under the Americans with Disabilities Act, which requires employers to make reasonable accommodations for employees in that situation.” 

On the other end of that contact-tracing call: ‘We’re not following the people; we’re following the disease,’ local epidemiologist says.

You might remember some of the national headlines in March announcing Colorado’s first death from COVID-19. “It had already been a grim day. The governor of Colorado had just announced the state’s first coronavirus death, an 83-year-old woman, when public health investigators discovered where she had spent some of her final days: a bridge club,” Jack Healy wrote in The New York Times.

The bridge club in question? The Colorado Springs Bridge Center, where reportedly hundreds of people were exposed to COVID-19. And behind the scenes, Haley Zachary was part of El Paso County Public Health’s response. 

“That ended up being my first case, and it ended up being kind of a nationwide story,” says Zachary, who works as a communicable disease epidemiologist for the county’s health department. “So I would say that ... definitely sticks out in my mind as being memorable if not incredibly difficult.”

In Colorado, labs and medical providers must report cases of specific diseases to public health officials. Once they find out a person is ill, the contact tracing begins. In some cases, that may involve a vaccine or other medical intervention. For COVID-19 cases, the interventions are largely educational. 

Epidemiologists have used contact tracing in various forms since the Cholera outbreaks in London in the 1850s. Today, people largely conduct contact tracing over the phone. When El Paso County Public Health officials hear about a reported case, they attempt to find out who else may have been infected, and they create a quarantine or isolation plan for the person. 

“It’s actually a very simple process of kind of just following people in terms of where they’ve been, what they’ve been doing,” Zachary says. “And really, we’re not following people; we’re following the disease, so we’re not looking to find out what each individual, what their lifestyles are, what they do, we’re simply trying to find out where the disease may have gone and prevent it from going any further.” 

Zachary, who has been in the epidemiology field for seven years, says people aren’t always eager to talk when they get a phone call from a public health official about COVID-19. But the majority, she says, are willing to discuss their symptoms or situations. Zachary points to misinformation as one of the biggest barriers to contact-tracing, so educating people about COVID-19 and why they are reaching out, can quell some fears. 

“But we really do try to work with our public to kind of lessen that fear and that concern because ultimately you know we are doing this for the public,” Zachary says. “We are doing this for those people who may not be aware of their exposures, who may not be aware that they are, potentially incubating the illness and, in my opinion, everyone has a right to at least make an educated decision regarding their healthcare and their exposure and so kind of often relaying that information to people will allow them to understand our perspective and be more willing to share that information.” 

However, even just talking with people has sometimes presented its own challenges. There have been a “large number” of Spanish speaking-only cases, according to Zachary. In order to meet the need, bilingual employees from other departments have joined the contact tracing efforts, but because they will eventually need to return to their original positions, Zachary says the department is recruiting more Spanish-speaking staff. 

“This team is kind of often in flux, and part of that reason is because we at the Health Department have had to rely on staff outside of our normal communicable disease department to take on some of this increased disease burden,” Zachary says.

About the CC COVID-19 Reporting Project

The CC COVID-19 Reporting Project is a student-faculty collaboration by Colorado College student journalists Miriam Brown and Arielle Gordon, Visiting Assistant Professor of Journalism Corey Hutchins, Assistant Professor of English Najnin Islam, and Journalism Institute Director Steven Hayward. Work by Phoebe Lostroh, Associate Professor of Molecular Biology at CC and National Science Foundation Program Director in Genetic Mechanisms, Molecular and Cellular Biosciences, will appear from time to time, as will infographics by Colorado College students Rana Abdu, Aleesa Chua, Sara Dixon, Jia Mei, and Lindsey Smith.

The project seeks to provide frequent updates about CC and other higher education institutions during the pandemic by providing original reporting, analysis, interviews with campus leaders, and context about what state and national headlines mean for the CC community. 

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