Back-to-School Planning: Minimizing COVID-19 Liability Exposure

As states and businesses reopen as the COVID-19 pandemic continues, schools will surely follow. Pupil transportation companies need to prepare to safely transport students while minimizing liability exposure and risks of claims, government regulatory enforcement, and litigation.

This brief overview provides a sampling of guidance and issues that pupil transportation operators need to be aware of and address; however, since government advice changes frequently and litigation is just commencing, it is advisable to consult with counsel before implementing any safety and health plans.

OSHA Compliance

The Occupational Safety and Health Act (OSHA) requires employers to comply with safety and health standards and regulations put into effect by OSHA, or by a state with an OSHA-approved state plan. OSHA has not yet issued specific guidance for school bus companies but has released revised COVID-19 enforcement policies to ensure employers are taking action to protect their employees and is increasing in-person COVID-19 inspections at all types of workplaces.   

Pupil transportation companies should: assess the hazards to which their workers may be exposed; evaluate the risk of exposure; and select, implement, and ensure workers use controls to prevent exposure.

Control measures may include a combination of engineering and administrative controls, safe work practices, and personal protective equipment (PPE). Companies that need to clean and disinfect environments potentially contaminated with COVID-19 should use registered Environmental Protection Agency (EPA) disinfectants with labeled claims that the product is effective against COVID-19. The EPA-approved disinfectants for COVID-19 are found on “List N.” Workers who conduct cleaning tasks must be protected and may need appropriate PPE to prevent exposure to the chemicals.

CDC Guidance

On May 14, the Centers for Disease Control and Prevention (CDC) issued a set of recommendations that detailed practices that school transportation companies should follow. Drivers should practice all safety actions and protocols as indicated for other staff (e.g., hand hygiene, cloth face coverings), and the CDC recommended that schools create distance between children on school buses (e.g., seat children one child per row, skip rows) when possible. States and school districts may implement other guidelines, which could consist of health screenings for students before boarding the school bus, limited capacity routes, different schedules for schoolchildren, and multiple trips throughout the day.

The CDC has also provided guidance to promote vehicle safety, employee safety, and general bus safety. School bus operators should develop a COVID-19 health and safety plan to protect employees. That plan should include measures to physically separate bus operators and passengers, designate an employee to be responsible for responding to COVID-19 concerns, and provide employees with disinfectant wipes, gloves, and alcohol-based hand sanitizers.

EEOC Guidance

The Equal Employment Opportunity Commission (EEOC) clarified its position on making “reasonable accommodations” for employees with any underlying medical conditions listed by the CDC. The Americans with Disabilities Act (ADA) does not allow employers to exclude employees from onsite work locations simply because they have an underlying medical condition. As employees return to work, employers must be cognizant of possible discrimination suits based on age or preventing access to the workplace due to an employee’s underlying conditions.  

The EEOC has also stated that employers can continue to screen employees for the virus and make “disability related inquiries and conduct medical exams if job-related and consistent with business necessity,” to exclude an employee with a medical condition that poses a direct threat to health and safety.”

If the school administration enacts rules to protect students, there are legal precedents indicating that bus operators “owe the same duty of care entrusted to its care and custody” as school authorities. Accordingly, pupil transportation companies should complete a thorough direct threat analysis, which includes an individualized assessment based on relevant factors, and a determination as to whether the threat can be reduced or eliminated through a reasonable accommodation (such as providing drivers with PPE and other steps to limit contact with passengers). 

Risk Mitigation

Pupil transportation operators have a “duty of care” to act as a “reasonable employer” under the circumstances, to avoid lawsuits for negligence and other claims from any third parties exposed to COVID-19 through school bus transmission, which may result in injury or death. Companies should not only endeavor to go above and beyond in terms of providing appropriate disinfectants, social distancing and PPE, but should be cognizant of laws, regulations, and even advice or guidance from expert agencies. Any federal, state, or local mandates should be strictly followed, as a failure to do so could lead to liability.  

Governors and mayors around the country have and will continue to implement executive and emergency orders addressing the specifics of reopening businesses and schools, including safety and PPE requirements. Likewise, any contract amendments, regulations, or other directives from school districts or education departments, should be strictly followed, as such measures may be evidence of a “duty of care.” Even official guidance, such as the CDC’s recommendations — although not a legal mandate — should be followed, as this information can be cited as evidence establishing a “duty of care” in negligence lawsuits, leading to potential liability for school bus companies.  

Review the various products and devices being implemented in the industry, and research thoroughly what other companies are doing; weighing not just the costs involved, but more importantly, the safety and consistency with official guidance.    

Matthew Daus is a partner of and chairs the Transportation Practice Group at Windels Marx Lane and Mittendorf. He also serves as transportation technology chair at the City University of New York’s Transportation Research Center.