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"They could be challenged" | School COVID-19 liability waivers, disclaimers and the legality of both

Teachers and parents have been talking about COVID-19 liability waivers for schools across social media, including in Grainger County.

KNOXVILLE, Tenn. — Many people, including teachers or parents, are talking about COVID-19 liability waivers on social media, especially as it relates to school. Earlier this month the Tennessee Education Association issued a statement addressing them.

They said this kind of waiver a "disregard for teacher safety."

Here's an excerpt from the statement:

"Currently, some districts are improperly asking educators to sign liability waivers as a condition to return to work. Liability waivers demonstrate disregard for educator safety.

Any work requirement or request of employees by the district without providing assurances that any or all common-sense actions on personal protective equipment, sanitation supplies, and support professionals have been taken is also improper."

However, some districts have decided to go with disclaimers for parents. Earlier this week the Grainger County School Board voted to make parents sign a disclaimer before students return to school. But according to Director of Schools James Atkins, it is no longer mandatory.

He also emphasized that it is not a waiver.

"The disclaimer is simply a means to inform parents that Grainger County Schools cannot guarantee safety," Atkins said. "Safety is of the utmost concern, and it always will be! We are taking multiple precautions to keep our students and employees safe."

He said the disclaimer will now be sent to families in a letter and put in the student handbook.

Here is the disclaimer:

"Due to the COVID-19 pandemic, Grainger County Schools ("District") has been exploring different and reasonable ways to provide services to all students. The District has worked with state and local agencies, including our local health department, to draft and implement guidelines moving forward regarding cleaning, screening, etc. Though the District and its agents will work hard to implement and abide by those guidelines, neither the guidelines themselves nor even recommendations from the Centers for Disease Control and Prevention ("CDC") would ever allow the District to guarantee an environment that is entirely free of COVID-19 related risks.

By allowing your child to return to school, you must understand that your child's attendance will require him/her to physically interact with the District's staff members, other students, and even some limited volunteers. As such, despite all reasonable efforts on behalf of the District, physical interaction with the public at large may pose some unavoidable risks to you, your child, and your family due to the COVID-19 pandemic. While the District hopes that everyone remains safe and healthy during this trying time, we also want to remain both honest and transparent with our parents about the very real risks posed by COVID-19 both inside and outside of our schools."

Attorney Don Bosch shared a legal perspective on disclaimers and waivers specifically, to help unpack the document sent Granger County families.

"A disclaimer allows a school board or entity to say, 'Hey we told parents or students that there is a risk,'" Bosch said. "It's not that they are waiving responsibility, but that there is an inherent risk."

However, he said that even though signed waivers are commonplace for school trips and activities, a COVID-19 liability waiver is a whole different ball game.

"I'm not sure any school system could require a student to have their parents execute a waiver in order to exercise their fundamental right to an education," he said.

Bosch said contracts add an extra layer of complexity for teachers, but also said it would be hard for the waivers to be accepted.

"I'm not sure those waivers would withstand challenge for a variety of reasons," he said.

Bosch warns many waivers circulating on the internet have been debunked. However, if school districts are writing waivers, he said parents and teachers could seek some help.

"I'm not sure this can be done and if school systems are trying this, then beware," he said. "Because I think there are some real challenges that could be made."

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