A local private university on Chicago’s Far Southwest Side is among a growing number of schools around the country requiring faculty, staff and students to sign a form before returning to campus asking them to acknowledge that safety precautions such as masks do not eliminate the risk of contracting COVID-19, prompting a vigorous debate about rights and liability.
St. Xavier University, a private Catholic school that serves 3,600 students, says the “informed consent” form is intended to make sure the school community knows the ongoing pandemic may require changes during the fall semester and understands safety guidelines put in place to reduce the spread of the novel coronavirus.
While some legal experts say informed consent forms simply ask employees to acknowledge risks, not waive their rights, others say universities are using documents like this to protect their institutions if sued by employees or students who contract COVID-19.
“The university will definitely use this document, if one signs it, to say that one has no right or limited right to hold the university accountable for carelessly causing COVID-19 outbreaks, including making you sick,” said Heidi Li Feldman, a law professor at Georgetown University with nearly three decades of experience in tort law who reviewed the document. She characterized St. Xavier’s form as “draconian” and recently wrote an op-ed urging faculty not to sign documents where students or faculty waive their rights to sue.
“It basically greatly expands the university’s power to do whatever it wants and requires faculty and staff to take on all the responsibility of being aware of every possible regulation and guidance about COVID-19,” she said.
The informed consent requirement comes as some universities in the Chicago area have reconsidered their reopening plans as the number of COVID-19 cases increased in recent days. St. Xavier appears to be the only local university to require staff and students to sign such a form before school begins.
Craig R. Wood, a lawyer with McGuireWoods, a law firm that works with colleges and universities, also reviewed St. Xavier’s form and says informed consent documents like this one are a reasonable approach for colleges to take and don’t force faculty to waive their rights.
“It is the same concept as when someone has a hospital procedure,” Wood said. “They sign an informed consent form that names the inherent risks of the procedure. But if the surgeon commits malpractice the patient still has legal recourse.”
It’s unclear if COVID-19 is covered under workplace compensation. The issue is still being legislated in states across the country, according to the Chronicle of Higher Education.
Meanwhile, some St. Xavier faculty see the form as a “power grab” to reduce their voice
in university decisions after the school said it would no longer recognize the 40-year-old faculty union in late May due to financial concerns during the pandemic and long-standing struggles in negotiations. They are especially concerned with a section of the form that would allow the university to eliminate academic courses and program requirements in response to the pandemic.
“When there’s no union, no parity at the table when it comes to discussions with administration, the outcome is administration can make arbitrary decisions and force them on faculty,” said Michael O’Keeffe, a theology professor and vice chair of the union.
Feldman also said that part of the form is unusual.
“They’re also taking the opportunity to restructure the entire employment relationship and that’s an unusual thing to be so sweeping about in a form that purports to be primarily oriented towards health and safety,” she said.
No safety guarantees
St. Xavier sent the informed consent form to faculty on July 21, telling those who are teaching this summer to sign the form by July 31. Those teaching in the fall must sign the form by August 12.
On Tuesday, President Laurie Joyner and the school’s interim provost and CFO sent an email to staff reiterating their reasoning for the consent form.
School administrators said in the email that academic changes may be needed to protect the health and safety of the university, but also preserve university operations and “the livelihoods of our faculty and staff.” Joyner told employees in late May the university is anticipating a $4 to $9 million budget gap for the next fiscal year and schools similar to theirs should expect enrollment declines.
“Your signature also reflects your understanding that no university can eliminate all risks of contracting any disease that is publicly circulating, nor predict all related adjustments that may be required to protect our students, faculty and staff,” wrote Joyner.
It says if faculty are unwilling or unable to sign the pledge they should discuss options with the school’s human resources department.
Voluntary pledges increasingly popular
The university would not make President Joyner available for an interview, but sent a long statement that reiterated the university’s intent to ensure all employees understand safety guidelines and that changes might occur throughout the fall semester due to the pandemic.
“The informed consent form is intended to ensure that the community is aware that because the pandemic is ongoing and unpredictable, the public health measures adopted in response may require the university to make changes to academic programs that we cannot yet predict,” the statement read. They also noted these forms are becoming increasingly common among colleges and universities across the country.
Universities have lobbied Congress for blanket liability protection from coronavirus-related lawsuits and lawmakers across the aisle have expressed support. Some states, including Utah and North Carolina, have approved immunity for businesses and educational institutions from lawsuits related to COVID-19.
The University of New Hampshire asked students to sign an informed consent form, but extended the deadline by a week to sign after students said they were uneasy about signing the form.
But few public or private colleges and universities in the Chicago area are requiring faculty and students to sign any documents upon return to campus.
The University of Chicago is asking faculty, students and staff to sign a form agreeing to wear a face mask on campus and to alert the university if they test positive for COVID-19, among other safety precautions. Feldman said U of C’s form is similar to ones she’s seen that are focused on health and safety rather than asking faculty to acknowledge they are assuming risk upon return to campus.
The University of Illinois Urbana-Champaign is asking faculty and students to sign a voluntary pledge that says they will wear a mask, sanitize areas and participate in regular COVID-19 saliva testing on campus. Indiana University in Bloomington is asking students to sign something similar.
An Illinois spokesperson said the pledge is part of an educational campaign. The university added a disclaimer to the end of the pledge to clarify for students and employees this was not an assumption of risk.
“Faculty, staff and students are not required to sign the Illinois Community Pledge. Those who sign the pledge are not entering into a binding agreement with the university, but instead are voluntarily expressing their personal commitment to keeping the campus community safe,” the disclaimer reads.
The faculty senate at St. Xavier is meeting next week with some administrators to discuss the form. But faculty are skeptical there’s anything they can do to convince administrators to amend or change the form after the university’s three deans sent an email Tuesday evening.
“The informed consent is not a document that has been presented to the faculty for revision or input,” the deans wrote. “It is an individual document that each employee should read and sign.”
The deans said the concerns about academic changes will not affect any faculty members employment status or program. But O’Keeffe said faculty feel stuck. He will be teaching in a hybrid model at St. Xavier this fall, with a rotating schedule of students coming in person and tuning in online.
“I don’t think a lot of faculty were in positions to weigh the risks associated with attending class or being willing to teach in person classes and the university’s demand that we do so,” he said.