The trap is set...

On Monday December 21, 2020, a bill was passed in the legislature's third special session granting limited liability to K-12 public and private education facilities. HB 4402 "limits liability of school districts, union high schools, education service districts, public charter schools, private schools providing instruction to any grade from kindergarten through grade 12 and community colleges for certain claims arising during COVID-19 emergency period. Prohibits certain private employers from engaging in retaliatory conduct relating to protected activities taken by employee during COVID-19 emergency period. Declares emergency, effective on passage".

The bill is equal parts whistleblower protection and limited liability for schools from anything COVID-19 related. The bill provides protection from retaliation for any employee of private employers who report COVID-19 related violations of policy or guidance. Within 48 hours, clarity regarding why whistleblower protection was added became a bit clearer.

On the heels of this, Oregon Governor Kate Brown made a joint announcement with the Oregon Department of Education giving back certain decision making powers over to local control. The announcement claims that "effective January 1, 2021, Oregon’s COVID-19 Health Metrics for Returning to In-Person Instruction will become advisory rather than mandatory. Moving forward, the decision to resume in-person instruction must be made locally, district by district, school by school. In addition to schools continuing to adhere to required health and safety protocols and working in close consultation with their local public health authority in understanding and considering the metrics, teachers, school staff, parents and students should be engaged in this decision-making process to allow schools to make the best choice for their community and their students."

But there's a caveat. In order to maintain limited liability status, educational institutions will be required to meet the new metrics, and recommendations of the Ready Schools Safe Learners guidance handbook.

A D V E R T I S E M E N T

A D V E R T I S E M E N T

Exposure has been redefined to mean "An individual who has close contact (less than 6 feet) for longer than 15 cumulative minutes in a day with a person who has COVID-19 case"(emphasis added). Additionally, metrics have moved away from positive case counts to include "County Case Rate", and "County Case Count". The rate or count is a total number of both presumptive and positive cases for the entire county. The Oregon Health Authority stopped disclosing false positive and negative test data months ago, and as new trackers and tracers are hired, anyone who has potentially had exposure is a new case until the currently approved PCR testing, claims otherwise.

Essentially Johnny might be a presumptive case, and Susie stands next to Johnny for five minutes while lined up to walk inside school. Johnny and Susie spend another ten minutes near each other – at less than 6ft apart – and bam! Susie is now a new COVID-19 case due to the new definition of exposure, which is no longer dependent on positive test results. We've effectively kicked the goalposts down field from measuring death, to positive tests, and now to 15 cumulative minutes in a day near someone who might have COVID-19. How would these interactions be traced or even reported? Perhaps by a disgruntled employee? Maybe a teacher or substitute teacher who disagrees with the return to in-person instruction? The whistleblower protection aspect of HB4022 ensures no retaliation for those employed by private (not public) employers. Questions remain regarding private faith-based teaching institutions, and whether these increasingly bizarre metrics or employee protections place a target on faith-based, in-person teaching.

Puzzling to some observers was the participation in this conversation by the Oregon Education Association which was widely believed to have opposed HB 4402, presumably based on their desire to keep schools closed until their demands for even more money are met. Indeed, some insiders reported that Speaker Kotek misrepresented the number of votes she had for passage of the bill, hoping to get Republicans to vote yes, so that more Democrats could vote against the bill -- supporting the wishes of the OEA and the Trial Lawyers' Association, both big donors to Democrats.

Ultimately the decision will be left to local superintendents and school boards. However, if they make the wrong decision, they might just lose their liability insurance or indemnification.



This feels like an appropriate time to remind readers that the directors of the Oregon Health Authority and the Oregon Department of Education – Governor Brown's so called "experts" – were appointed to their positions by Brown. Pat Allen of the OHA is no more a Doctor or Scientist, than Colt Gill the ODE director is an educator.

Just in case you're quietly shaking your head, wondering which Loony-Toon character is creating these policies, don’t question your own sanity.


--Breeauna Sagdal

Post Date: 2020-12-24 14:41:16

Last Update: 2020-12-24 21:23:08