Will Liability Insurers Drive School Mask Policies?

by James C. Sherlock

California has imposed a school mask mandate for the fall.  Virginia has not — yet.

California shows us some of the implications. In that state, the mandate has produced varying reactions.  Reporting in Education Week has illuminated some of those.

California requires schools to enforce a mask mandate, and offer independent-study options, including virtual learning, for those students who can’t or won’t mask. But school leaders are juggling a host of conflicting questions as they plan for reopening.

Tom O’Malley, the superintendent of Modoc Joint Unified, a small, rural district on the Oregon border, said his community’s vaccination rate is only about 40 percent, but families there will not tolerate a mask requirement. His five schools stayed open last year and people masked up, but students and staff still got sick, usually from parents or other off-campus adults.

“Our families saw that our kids wore masks all year long and it didn’t matter. People still got it,” O’Malley said. “I’m not going to kick a kid off campus if they show up without a mask.”

Helio Brasil sees things differently. The superintendent of Keyes Union, a small K-12 district in California’s agricultural Central Valley, will enforce the state’s mask mandate. His liability insurance carrier told him “flat-out” that if he doesn’t, it won’t cover claims arising from COVID-19, Brasil said. That could expose the district to expenses that could hamper his ability to serve his students, he said.

“I am feeling caged and frustrated,” Brasil said. “If a kid comes to school without a mask, do we call law enforcement? Every decision has legal repercussions. I feel I have no choice but to enforce it. But how will this go over with my parents?”

Many school and district leaders said they feel they can’t ask which students and staff members have been vaccinated, because they’d violate privacy rules or create an unwelcoming environment. Legal experts say individual inquiries aren’t advisable, but getting an aggregate sense of people’s vaccination status—through an anonymous survey, for instance—could yield valuable insights that could inform schools’ strategies.

As an aside, the CDC warned against cohorting students by vaccination status.

“Caged and Frustrated”

“Caged and frustrated” is an appropriate and utterly predictable reaction by division superintendents and school principals to the mandate. So, will the upcoming school year be a repeat of the last one?

School liability insurance

Will insurers drive decisions? I suspect but do not know that insurers in California can demand masking as a condition of liability insurance only because the state has mandated it.

Call me a cynic, but I don’t think Governor Northam will issue such a mandate ahead of the fall elections.

But it would be a good to know for sure the insurance implications in case he considers it before or after those elections.

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11 responses to “Will Liability Insurers Drive School Mask Policies?”

  1. Eric the half a troll Avatar
    Eric the half a troll

    “If a kid comes to school without a mask, do we call law enforcement?”

    What an absurd question. Intentionally obtuse is an apt description.

  2. Stephen Haner Avatar
    Stephen Haner

    Whether or not there has indeed been a storm of litigation in the past 18 months is something I would love to know more about. Not my bailiwick, so perhaps somebody else (who is logged into the courts databases or the right news feeds.) It should surprise no one that fears of liability are a major driver of these decisions. Other states have enacted some safe harbors, but not Virginia. Virginia is for litigation.

    1. James C. Sherlock Avatar
      James C. Sherlock

      Excellent point about safe harbor legislation.

    2. James C. Sherlock Avatar
      James C. Sherlock

      One example of a government entity suing its insurer: The University of Colorado Board of Regents has filed a lawsuit against its insurance company alleging that the insurer has failed to pay claims related to losses sustained from the COVID-19 pandemic.

  3. energyNOW_Fan Avatar

    One non-profit activity I am in, the non-profit insurer dropped communicable disease from our coverage.

  4. James Wyatt Whitehead Avatar
    James Wyatt Whitehead

    This is more about politics than litigation or health. Mr. Northam if you send forth a school mask mandate you can hand the keys over to Mr. Youngkin.

    1. Super Brain Avatar
      Super Brain

      Younkin would lose the keys.

      1. Nancy Naive Avatar
        Nancy Naive

        But he won’t lose a debate if he can withdraw from it.

    2. Nancy Naive Avatar
      Nancy Naive

      Then why wouldn’t Youngkin bring that up in the televised debate? Oh that’s right, he withdrew from the debate.

  5. Super Brain Avatar
    Super Brain

    Century 21 retail blamed their Chapter 7 on the insurance company for not covering a covid shutdown.

  6. Nancy Naive Avatar
    Nancy Naive

    Seat belts and airbags. I suppose you’d want those to be optional equipment again?

    There’s a PSA currently running in our area that says sealt belts save 15,000 lives per year. Not sure how they determined that, but it has been a claim I’ve heard for many years. Automobile accidents claim something like 45,000 lives per year.

    Covid took 600,000 in one year. What’s a mask worth relative to a selt belt?

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