When we think of back to school, we think of whimsical things such as the famous Staples TV commercial that played the Christmas song “Most Wonderful Time of the Year” to the shopping joy of relieved parents sending their kids back to school.
Yet in the first back to school since the world learned of COVID-19, whimsy has eluded us. At the top of the daily headlines and social media trending topics is the social, personal, and legal morass that is this year’s return to school. While some large school boards, such as the Los Angeles Unified School District (the nation’s second-largest school board), are playing it safe and opting for remote learning, most large school boards across the nation have opted for in-person learning or a hybrid of in-person and remote learning. The end result is fear among many teachers that they will be at great personal risk by returning to the classroom.
NBC news recently reported the story of a Florida law firm offering free living wills to teachers returning to the classroom this fall while the COVID-19 pandemic still rages in many parts of the country. While it is easy to dismiss this story and file it under “morbid,” the issue is far more important and nuanced. If we ask the question “Should schools be obliged to offer living wills to teachers returning to their physical classrooms this fall,” we open a complex discussion.
First, it’s important to note that the Florida law firm in issue was not simply being dramatic in offering free living wills for teachers. As the NBC piece reported,
I had read a story a few weeks ago about three Arizona teachers who’d gone back to school to work on a project, said Charles Gallagher, whose St. Petersburg law firm, Gallagher & Associates, is among those offering teachers free living wills. All three contracted COVID-19 and one died.
Reading this, one’s first reaction might be to think “sure, why not offer teachers free living wills if they’re returning to the classroom in September?”
One possible reason not to do so revolves around the notion of potential liability for the school boards and the states. If we play out a scenario where a school board provides living wills to all interested teachers (which would require state approval, either overt or tacit), it creates a legal argument that the school board and the state recognize that they are sending teachers (state employees) into an inherently dangerous situation.
This is a remarkably unenviable position in which school boards and the states place themselves. It would be difficult to imagine a scenario in which they would do so, even if providing teachers this “perk” would be the right thing to do. It is very unfortunate as one would hope, in such trying times, all employers would do whatever was possible to offer employees (especially essential employees) extra benefits to counterbalance the added stress and potential dangers of going to a physical workspace. This optimistic scenario seems not to be the case so far this summer.
We could certainly see more law firms providing free living wills to teachers as a sort of loss leader – a certain percentage of each free living will they provide will convert into paid future work from that teacher or their immediate family. Aside from providing the free work, there really is no downside for lawyers to provide these living wills. Lawyers and law firms that continue to do so will be seen as providing a goodwill gesture to valued professionals in their community, which is always a good thing.
Once schools open, there will certainly be a volume of new litigation relating to these schools and the wisdom of reopening during an active pandemic. Again, lawyers and firms that position themselves at the fore of these issues by offering free living wills may be front of mind for potential plaintiffs (individually and in prospective class actions).
Finally, there will be employment law, personal injury, and class action issues if schools reopen then abruptly close because the virus proved to be unmanageable for schools. Strong arguments will be made that this condition certainly should have been foreseen by the school boards and the states that fund and regulate them. As the next few months unfold, this will be an interesting legal and educational area to watch.