Each year, there’s a particular excitement in the air during the month of August. Some may say it’s because of the final days of summer, fantasy football drafts, or tax-free shopping days. But for parents and children, it’s usually because school is back in session. However, parents sending their children back to school this fall are presented with fresh concerns of how schools are preparing to prevent the spread of COVID-19. One challenge is deciding between in-person learning and remote, distance-learning options. Many parents choosing to send their children back for in-person instruction have been required to sign a liability waiver as a condition. This practice has been implemented in both private schools and public school districts. These waivers ask parents to waive their rights to bring an action against the school or school district in the event their child becomes infected with COVID. The biggest legal question these types of waivers present is simply whether they are enforceable.
These waivers have been most prevalent where children participate in voluntary, extra-curricular activities, but some parents of children at the preschool and kindergarten age have also had to waive their rights. This is surprising even when current data supports that young children are at an especially low risk for becoming infected with COVID. Additionally, pediatricians across the US have voiced strong support for children physically returning to schools, even if there may be risks associated with doing so.
The enforceability of such waivers may be an issue, as courts typically do not allow one to waive his or her right to sue someone or bring a claim for someone else’s negligent conduct. Generally, minors cannot legally enter into a contract and parents must sign on behalf of their children. However, some states limit the ability of parents to waive the rights of their children. For example, Florida courts have discussed that a parent waiving the rights of a minor conflicts with public policy. Claire’s Boutiques v. Locastro, 85 So. 3d 1192, 1196 (Fla. 4th DCA 2012).
The cause of action one might bring to pursue a COVID infection claim would most likely be for negligence. Out of all of the elements to bring a negligence claim—duty, breach, causation, and damages—one would assume that the causation element would be most difficult to prove in this type of case. Parent-plaintiffs may find it quite difficult to prove causation, such as when and where their children became infected with COVID, especially because of the potential fourteen-day incubation period of the virus.
Although the waiver is not likely enforceable, as it amounts to a limit on one’s legal right to sue, the waiver may successfully limit the type of claims a parent could bring for COVID infection of his or her child. A parent would have a stronger cause of action when there is evidence that adequate precautions are not put in place or regulations, such as CDC guidelines, are not followed.
At a time when parents are pressured to send their children back to school by medical professionals, as it is in a child’s best interests, these waivers do not instill confidence among parents that their children will be safe. Private schools and public school districts must follow guidelines and safety protocols to provide peace of mind and a safe learning environment for all children.