Could schools or teachers get sued over COVID-19 outbreaks?

As parents, students and teachers grapple with a school year they’ve never experienced before, liability has emerged as another issue of significant uncertainty in our COVID-19 era.

Legal experts warn school boards could be sued in the event of an outbreak, but civil claims will probably be hard to prove.

The possibility of the virus spreading in classrooms is weighing on teachers who are faced with the responsibility of protecting their students.

If a child contracts COVID-19 at school, then infects family members who are financially or physically affected by the disease, Mississauga-based personal injury lawyer Nainesh Kotak says liability is limited.

Kotak said claims would have to prove a school’s negligence, and that the negligence caused the infection.

“There could be exceptional circumstances whereby for example that the teacher did not enforce distancing, obviously didn’t do it, didn’t enforce masks when they were clearly supposed to,” Kotak said. “If it can be proven that that resulted in the actual child getting COVID or passing it onto someone else, then I suppose in those circumstances there could be a finding of negligence.”

But Kotak thinks overall, establishing where your child contracted the virus will be challenging, given COVID-19’s community spread.

As long as schools are following policies set out by the provincial government and public health officials, Kotak said the chances of a successful claim are little or none.

“I think it will be very difficult to prove the negligence, to prove the causation and to receive compensation,” he said.

So-called ‘pandemic pods’ may pose bigger liability risk

Kotak sees more liability risk for parents who have set up pandemic pods out of their own home.

“There are no standards that have been put forth to how they should be run,” said Kotak. “In the home, if there is an incident whereby care is not taken and COVID is passed onto other children or instructors coming to the home and it spreads accordingly, who will cover that?”

He explains that home insurance likely will not, because pandemic pods may be considered a business venture, and suggests families in the pod buy a policy together.