Signing the COVID-19 Waiver: Is it worth the risk?

Our true character is revealed in times of crisis. For universities,the COVID-19 pandemic is one of the largest crises they have faced in recent history. Not only does COVID-19 threaten the safety of students, staff, and faculty, it also impacts a university’s bottom-line. Small universities such as St. FX rely significantly on students who not only pay tuition but also residence costs and meal plan fees. In this regard, the prospect of going fully online would be financially catastrophic for these small institutions. It is not a surprise then, that Mount Allison, Acadia and St. FX have all decided to re-open in the Fall, each with varying degrees of online-course delivery.

With re-opening comes a variety of risks for universities. In a Cornell study on small universities, researchers created three simulations to model COVID-19 spread. Even when eliminating sporting events, large classes and shared residence rooms, the virus still had multiple pathways in which to proliferate. Indicating that if COVID-19 enters the campus, it is likely that it will be passed on. While much is not known about COVID-19 and this is simply one study, it is worth noting that St. FX, being a for-profit institution, likely understands the potential risks of re-opening and has evaluated those risks against the benefits(mostly financial) from opening in the fall. 

It is for this reason that they want students to sign the waiver emailed on July 10, 2020, in order to be allowed on campus. In signing the waiver, students release St. FX from all liability in the event that student(s) contract COVID-19 and are harmed. In a lot of cases, this kind of waiver is standard. If you go to an amusement park and break your leg after falling off a roller coaster, the amusement park is not responsible for that injury if you have signed a waiver releasing them of liability. In this case, you have acknowledged that you understand the risks, and your relationship with the amusement park is not significant enough to indicate that it should have protected you beyond a certain level.

The relationship between universities and students are fundamentally different than the relationship between a private citizen and an amusement park. Universities are institutions that operate under a high-level of trust on the part of their patrons, the students. In other words, they have a fiduciary duty to take reasonable measures to protect them. In some circumstances, if they haven’t taken reasonable measures to protect students, they can be found to have breached their duty of care or to have acted in a negligent manner in court and may be ordered to provide compensation. Under this waiver, they ask students to waive their right to sue the university for negligence or a breach in their duty of care, in exchange for students’ ability to go on campus.

So, what does this mean? Primarily, it means that St. FX expects to students to spend thousands of dollars in tuition and other costs but is unwilling to take responsibility in law to reasonably protect students from the risks of COVID-19. Students are asked to agree to the statement: “I understand that I may be infected by COVID-19 as the result of negligence on the part of the Releasee (St. FX).” Indicating that rather than take reasonable responsibility for the risks involved in reopening, and possibly purchase insurance, St. FX has decided to transfer the risk involved to the student body.

Further, students are asked to agree that in entering in the “Release Agreement” they are not relying on any “oral or written representations” made by St. FX with respect to the safety of participating in St. FX activities, or being at St. FX, other than what is set forth in this “Release Agreement”. Meaning that under the law, St. FX does not have to follow their own COVID-19 Pandemic Plan in order to mitigate risks, and that students need to indicate that they do not expect them to. In other words, the university has not put their money where their mouth is, in that any plan St. FX creates to respond to COVID-19 has no legal value.

What’s most significant is that St. FX has unbalanced bargaining power in this circumstance. For a lot of students, missing a year of school is not an option, leaving them vulnerable. Further, other than in the waiver itself, St. FX has not indicated the legal gravity of signing to students. Administrators, at the very least, should explain in plain language the rights students are giving up when signing.

It is important to stress that type of contract is not required. The university can create a waiver that obligates them to take reasonable steps to prevent harm to students, and in the event of circumstances they could not prevent, they can ask to be absolved of liability. This would be a fair contract with students and reflect the responsibility that administration needs to undertake in their decision to re-open, when other universities have not.

The COVID-19 waiver stands in direct contrast to the consistent messaging by the university administration on working together as a Xaverian community to ensure safety for everyone. If the university will not obligate itself to take reasonable measures to ensure safety for students, how can it expect students to do the same?

 Given this information, the question before students is if they should sign. It is unclear what the repercussions would be if not signing. St. FX indicates in their email to students on July 10, that they will not be allowed on campus. How will that be enforced? Will students not be able to attend class? It is also unclear if the university is legally allowed to prevent an individual from receiving higher education on the basis that they do not sign this waiver. 

 If you are a student who believes that the university should take reasonable steps to prevent the spread COVID-19, and that if they do not they should be held accountable in court, think twice before you sign.