COVID-19 Policy as a 'Liability Shield' at NYU

With higher-education institutions across the nation returning to in-person learning, college and university administrators are becoming anxious to avoid potential liability. As early as 2020, the American Council on Education pushed congress to “quickly enact targeted liability protections related to the Covid-19 pandemic.” These efforts culminated under the Second COVID-19 Stimulus Relief Bill, which Republicans insisted should include a ‘liability shield’ for businesses and other institutions, universities included.

To date, the federal government has not issued enforceable workplace standards for proper COVID-19 safety, only making soft recommendations. The relief bill likewise would be passed without a ‘liability shield’, leaving liability for COVID-related issues up to individual higher-education institutions. Democrats, notably Senator Elizabeth Warren who sits on the Senate Health, Education, Labor and Pensions Committee, opposed the measure due to the fact that “liability only [applies] when the college has behaved unreasonably under all the circumstances. The law does not impose automatic liability when somebody gets sick or even when somebody dies.” As such, in the case of the novel coronavirus, it appears as if most institutions have understood liability in terms of establishing and enforcing common sense, good faith health and safety practices rather than preventing all spread. NYU, while emphasizing its COVID-19 protocols, has admitted the reality of viral transmission on campus. Thus, we can analyze New York University’s liability for its ‘NYU Returns’ COVID-19 plan under a “reasonable effort” framework.

The leadup to Spring 2022 semester was marked by the Omicron variant, which led to a surge in cases across the nation. NYU was not exempt, and there was significant anxiety about students returning to campus. Booster shots had recently been authorized for college-aged individuals, and universities were considering whether or not to mandate them for in-person learning. NYU’s vaccine booster announcement came at around the same time as other institutions’. Its deadline, however, was ambitious: January 18th, 2022. Columbia University mandated a January 31st, 2022 goal and the CUNY System aimed for January 28th, 2022.

The effect of this was an undue burden of stress on NYU’s international student population. “22.2% of NYU students come from outside the U.S.”–while U.S.-based students were able to benefit from a surplus of vaccines, those in countries with restricted vaccine accessibility struggled to receive eligibility domestically. Some even adjusted their travel plans in order to arrive in the United States and get jabbed ahead of the abrupt announcement. Considering NYU’s significant international student body, it seemed the least likely out of any higher-education institution to set such a sudden, strict deadline. Yet once more, unlike Columbia and the CUNY system, NYU’s messages to its students were frequent and emphatic. A user on r/nyu, NYU’s unofficial student subreddit, described the feeling:

I am physically not in a country where I can receive a booster shot right now and I became eligible last week. But they are now jumping up and down warning me of the consequences of not complying. I want to be vaccinated and I am trying my best to comply but it doesn’t feel great that they are now threatening to de-enroll me. A university that prides itself on how international it is does not think about international students at all.

These emails are amazingly available to the public on NYU’s website. They range from plain reminders – “we urge you in the strongest possible terms to bring yourself into compliance immediately,” to outright threats – “Failure to comply…will result in being prevented from entering NYU buildings and other significant consequences, up to and including de-enrollment…De-enrollment may also carry financial consequences”.

The NYU Student Health Center would eventually acknowledge the case of international students on January 11th, 2022 one week ahead of the deadline. These students were to reach out to the Student Health Center and work out their individual circumstances. This indicates that NYU, in setting such an unreasonable date, did not think of its international students’ needs at all, and were instead motivated by something else.

Anecdotally, some students in reaching out to the different NYU administration members received informal word that they most likely wouldn’t be de-enrolled for not being boosted by NYU’s deadline. In fact, messages from NYU Returns suggest that de-enrollment for students not in compliance did not go forward until early February, well past the date originally communicated. Of course, NYU did not promise strict enforcement of the January 18th, 2022 deadline, but the question remains: why was such an ambitious date set in the first place rather than a more considerate timeframe in early February?

A possible explanation is the legal concept of assumption of risk. The idea is that certain activities carry inherent risks, and so long as a plaintiff knowingly understands the risks and willingly engages, a defendant cannot be liable for the plaintiff being exposed to danger. In this case, NYU may not have expected a good amount of its students to be in compliance by its January 18th, 2022 deadline but set it regardless in expectation of a surge in Omicron cases on campus. In such an event, NYU could have pointed to its booster shot mandate for ‘reasonable effort’ regarding breakthrough cases, and deny all liability for infections among non-boosted students.

Assumption of risk also explains the frequency and emphatic nature of NYU Returns’ messaging. Perhaps NYU was attempting to lay a paper trail justifying beyond a reasonable doubt as to their efforts to communicate and remind its students as to the new mandate. In short, the early deadline was important legally for NYU in and of itself. Bringing its student body into compliance with its booster mandate does not seem to have been its primary goal.

We see this legal concept across and throughout NYU Returns’ COVID-19 policies. NYU’s masking policy, for example, insists on medical grade masks such as KN95, KF94, and N95. In reality, this policy is applied inconsistently, if at all. Again, under the framework of “reasonable effort,” the policy in and of itself appears to be more important than actual results. Fault for any given COVID-19 case would appear to come down to individual students and/or authority figures for failure to comply with university policy.

It’s important to note that NYU’s practices are not unique. However, NYU does seem unique in the degree to which it takes limiting liability. A primary example would be both NYU’s new dining policy and the recent relaxing of masking policies.

“Eating is now permitted at select indoor settings…where in-person participation is not required.” However, this does not include dining halls. As for masks, they are now only required “where in-person attendance is obligatory” such as classrooms. Some exceptions also exist for facilities such as the library and university transportation.

Other higher-education institutions have chosen not to put the emphasis on required and/or obligatory spaces for masking. Take Yale University, which reopened dining halls with the goal of dissuading students “from taking their grab-and-go meals to eat together in smaller, poorly ventilated spaces.” Such a policy is at the least well-thought-out and seems oriented towards actually reducing transmissions on campus. As opposed to student choice for where to eat, one could argue that a dining hall is a space which a college or university could be more liable for. Yale, however, is proceeding regardless. In contrast, NYU is keen to emphasize individual choice, and thus individual assumption of risk.

In short, NYU seems especially aggressive in reducing its potential liability to the detriment of a significant amount of its students. It’s especially extraordinary considering the existing high burden of proof any plaintiff would need to meet in making a claim. Brandon Bryer, an Associate Member of the University of Cincinnati Law Review considered the problem: “a plaintiff must demonstrate that a university had a duty of care to keep its students safe, it breached that duty, such breach resulted in damages, and the university itself was the cause of those damages. This final causation requirement is likely fatal to many plaintiff’s claims. As asymptomatic carriers of COVID-19 are ever present and contract tracing is an imperfect science, it is very unlikely a plaintiff could precisely pinpoint the exact moment they contracted the virus. It becomes even more unlikely the plaintiff could prove by a preponderance of the evidence that their contraction of COVID-19 was caused by the university.”

Bryce goes on to make much of the same case that has been made here, that colleges and universities have taken express action to demonstrate student and other community members’ assumption of risk on campus.

For whatever reason, NYU seems especially concerned by COVID-19 liability, not so much to protect its students, but to protect itself. A separate review is necessary in order to identify why NYU is so concerned with this relative to other colleges and universities.

1 Whistle, Wesley. “Colleges Want Coronavirus Liability Protection. Senator Warren Says Not so Fast.” Forbes. Forbes Magazine, June 16, 2020. https://www.forbes.com/sites/wesleywhistle/2020/06/10/colleges-want-coronavirus-liability-protection-senator-warren-says-not-so-fast/?sh=5cc333261cd7. 

2  “In Stalled Relief Bill, Provision Gives Businesses Liability Protection.” NPR. NPR, December 12, 2020. https://www.npr.org/2020/12/12/945896652/in-stalled-relief-bill-provision-gives-businesses-liability-protection. 

3  Ibid.

4 Wesley, supra “Colleges Want Coronavirus LIability Protection. Senator Warren Says Not so Fast.”

5  Blanchard, Joy. “What College Students Need to Know about Liability Waivers for Covid-19.” The Conversation, October 14, 2021. https://theconversation.com/what-college-students-need-to-know-about-liability-waivers-for-covid-19-145361. 

6 New York University. “Important/Timely: Taking Stock: Update on the Spring 2022 Semester.” NYU, January 12, 2022. https://www.nyu.edu/about/leadership-university-administration/office-of-the-president/communications/important-timely-taking-stock-update-spring-2022-semester.html.

7 New York University. “Summary Update of Covid-19-Related Developments.” NYU, December 18, 2021. https://www.nyu.edu/about/leadership-university-administration/office-of-the-president/office-of-the-provost/provostial-communications/summary-update-on-covid-19-related-developments-12-18-21.html.

8 Ibid.

9  FDA. “Coronavirus (COVID-19) Update: FDA Expands Eligibility for COVID-19 Vaccine Boosters.” U.S. Food and Drug Administration. FDA, November 19, 2021. https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-expands-eligibility-covid-19-vaccine-boosters. 

10  Redden, Elizabeth. With CDC recommending boosters, will colleges require them?, December 1, 2021. https://www.insidehighered.com/news/2021/12/01/cdc-recommending-boosters-will-colleges-require-them.

11  NYU, supra “Important/Timely: Taking Stock: Update on the Spring 2022 Semester.”

12 Columbia University. “New Covid-19 Booster Mandate.” COVID-19 Resource Guide for the Columbia Community, December 16, 2021. https://covid19.columbia.edu/news/new-covid-19-booster-mandate. 

13  CUNY. “Booster Mandate and Deadlines (Students).” The City University of New York, January 25, 2022. https://www.cuny.edu/coronavirus/university-updates/booster-mandate-and-deadlines-students/#:~:text=If%20you%20become%20eligible%20after,the%20Pfizer%20or%20Moderna%20vaccine. 

14  New York University. “NYU Facts.” NYU. Accessed May 15, 2022. https://www.nyu.edu/admissions/undergraduate-admissions/nyu-facts.html#:~:text=22.2%25%20of%20NYU%20students%20come%20from%20outside%20the%20U.S. 

15  Columbia University. “University Communications.” COVID-19 Resource Guide for the Columbia Community, February 23, 2022. https://covid19.columbia.edu/news/covid-19-booster-mandate-deadline-deferred-end-may-2022.

16  CUNY. “University Updates.” The City University of New York. Accessed May 15, 2022. https://www.cuny.edu/coronavirus/university-updates/#spring-2022. 

17  u/kiha64. “NYU Returns Emails Are Getting out of Hand.” r/nyu. Reddit, January 2022. https://www.reddit.com/r/nyu/comments/s90urf/nyu_returns_emails_are_getting_out_of_hand/. 

18  Rodriguez, Rafael. “Action Required - Upload Your Vaccine Booster Proof (Students in Student Housing).” NYU, January 13, 2022. https://www.nyu.edu/life/safety-health-wellness/coronavirus-information/messages-to-the-community/action-required-upload-your-vaccine-booster-proof-1-13-22.html. 

19  NYU SHC. “Action Required - Booster Upload Deadline (Students).” NYU, January 15, 2022. https://www.nyu.edu/life/safety-health-wellness/coronavirus-information/messages-to-the-community/action-required-booster-upload-deadline-students-jan15.html. 

20  Ibid.

21  “Tested Positive for Covid before Booster Shot.” r/nyu. Reddit, January 2022. https://www.reddit.com/r/nyu/comments/sfvxt8/tested_positive_for_covid_before_booster_shot/. 

22 Ibid.

23  “Assumption of Risk.” Legal Information Institute. Cornell Law School. Accessed May 15, 2022. https://www.law.cornell.edu/wex/assumption_of_risk. 

24 NYU. “Masks and PPE.” NYU, May 3, 2022. https://www.nyu.edu/life/safety-health-wellness/coronavirus-information/safety-and-health/protective-equipment.html. 

25  Roscoe, Jules. “Opinion: NYU's Mask Policy Is Just for Show.” Washington Square News. NYU News, November 22, 2021. https://nyunews.com/opinion/2021/11/22/nyu-mask-policy-for-show-restrictive-boosters/. 

26  NYU. “Eating and Drinking.” NYU, May 4, 2022. https://www.nyu.edu/life/safety-health-wellness/coronavirus-information/campus-life/eating-and-drinking-on-campus.html. 

27  NYU, supra “Masks and PPE.”

28  Ibid.

29. Bryer, Brandon. “Making the Case: Colleges and Universities Should Be Shielded from Covid-19 Liability.” University of Cincinnati Law Review, October 18, 2020. https://uclawreview.org/2020/11/02/making-the-case-colleges-and-universities-should-be-shielded-from-covid-19-liability/.