July 9, 2020

By Attorneys Drew Bracken and Carrie Weber

On June 18, 2020, Governor Reynolds signed Senate File 2338, the COVID-19 Response and Back-to-Business Limited Liability Act ("Act"), into law. This Act protects private business owners and public entities such as school districts from civil liability for COVID-19 related injuries if certain conditions are met. 

Most notably, school districts shall not be held liable for civil damages if their acts or omissions were "in substantial compliance or...consistent with any federal or state statute, regulation, order or public health guidance." Iowa Code § 686D.7. The Act defines "public health guidance" as written guidance issued by any of the following: the CDC; the centers for Medicare or Medicaid; OSHA; the office of the Governor; or any state agency, including the department of public health. Iowa Code § 686D.2.11. A separate provision of the Act provides that districts will not be liable unless they act with reckless disregard, actual malice, or intention to expose an individual to COVID-19. Iowa Code § 686D.6.

We understand that districts face difficult decisions for the 2020-2021 school year, particularly in light of the varying guidance from several different sources. The decision whether to require staff and students to wear face masks/face shields is particularly difficult. However, following more cautious and restrictive federal or state guidance will likely result in the greatest protection from legal liability under the Act.

On June 25, the Iowa Department of Education (DE) issued its "Reopening Guidance for Schools" that may have raised more questions than it answered. The DE then released a FAQ on June 30 that clarifies its "Reopening Guidance for Schools." The DE acknowledged that its Guidance should be considered "high-level guidance" only and read in conjunction with other more comprehensive guidance. Accordingly, a district may not rely solely on the June 25 guidance and expect to be protected from liability. Additional identified sources of guidance include the DE's Return-to-Learn Support Document, health and safety training modules on the DE's Return-to-Learn Support Site, CDC Guidance, OSHA Guidance, and Iowa Department of Public Health guidance.

We also recommend that districts keep in close contact with their local public health officials. School district safety procedures should be based on current federal or state guidance and include an explanation for adopting or not adopting certain procedures. Such policies and rules will not only help keep people safe, but also assist in demonstrating "substantial compliance" under the Act so as to protect against liability.

As school leaders work to minimize disruption to education while protecting student and staff health, they also need to stay flexible. The Act requires that school districts apply current guidance. Communications with staff, students, and families should indicate that COVID-19 procedures are subject to change as the available guidance changes to reflect current conditions.

Please note that this is only a summary of the Act, the DE Guidance, and the potential impact on school districts in Iowa.

The Department's resources, including the most recent FAQ, are available here.

CDC Guidance for school districts is available here.

OSHA guidance is available here.

The Iowa Department of Public Health Guidance is available here.

The full text of the Act can be found here

If you have any questions about these or any other provisions, feel free to contact one of the members of Ahlers & Cooney's K-12 Practice Group. We will continue to monitor and review the most recent and up-to-date guidance.

Bracken, Andrew

Shareholder
Phone:
515-246-0307

Weber, Carrie

Associate
Phone:
515-246-0315

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