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First Page

649

Last Page

712

Document Type

Article

Abstract

Even those universities most firmly committed to returning to in-person instruction in fall semester 2020 recognized that for health reasons some exceptions would need to be made. The CDC had identified two groups—people age sixty-five and over and people with certain medical conditions—as persons "at increased risk of severe illness from COVID-19," and it had spelled out various special precautions they should take to avoid contracting the virus. Given the CDC's unique stature, universities very reasonably could have been expected to grant exceptions to faculty falling into either group, but that's not what many universities did. We argue that, properly understood, four separate legal sources required universities to exempt high-risk faculty in the past academic year from any in-person teaching requirement. Two of the four sources are federal statutes that qualify as major statements of national policy—the Americans with Disabilities Act and the Age Discrimination in Employment Act. The other two sources are important state-law doctrines with strong support in the American Law Institute's most recent torts restatement—protection from intentional infliction of physical harm, and protection from intentional infliction of emotional distress. A high-risk faculty member who was denied an exemption may well find this article helpful in trying to decide whether to bring suit. Our primary objective in writing the article, however, is not to encourage people to sue. Instead, it is to drive home to universities that, going forward, they need to be considerably more conscious of, and conscientious about, their legal obligations than many of them were in formulating policies affecting high-risk faculty in the past academic year. And by "going forward," we mean not only for the remainder of this pandemic, but also for any crises that the future may hold.

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