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.