To our friends, clients and colleagues in local and regional government, higher education and the nonprofit sector, welcome to our latest Monday Message from the Public Law Group at McDonald Hopkins. In today’s email, assembled by attorneys David Gunning, Kelsey Smith and Kevin Butler, you’ll find insights into areas of law we’re watching on your behalf.

In today’s edition:

• Federal guidance on essential infrastructure workers updated
• Modified Title IX sexual harassment procedures now in effect at colleges, universities
• Immunity updates from Columbus, Washington: Will COVID waivers be necessary?

Federal guidance on essential infrastructure workers updated

Our Public Law team member Kelsey Smith reports today on new guidance released last week by the Cybersecurity and Infrastructure Security Agency, an arm of the U.S. Department of Homeland Security, offering suggestions on how government and private entities should prioritize essential-worker safety concerns while operating critical infrastructure facilities across the nation amid the pandemic. Read Kelsey’s post here and view the updated CISA guidance here.

The agency not only redefines the list of critical infrastructure personnel (broadly, those working within and supporting crucial industries including law enforcement, public works including water and wastewater service, healthcare, information technology, telecommunications, food production, energy, defense, transportation and logistics), but also offers checklists of considerations government and private employers should make to keep their critical workers safe. Because CISA’s essential-worker guidance often forms the basis for state pandemic-related orders, employers are well advised to review the guidance and update their worker-protection protocols accordingly. Call on any of us to help you navigate these matters sitting at the intersection of employment law and public law.

Modified Title IX sexual harassment procedures now in effect at colleges, universities

In May 2020, the United States Department of Education issued new regulations implementing the prohibition of sexual harassment under Title IX of the Civil Rights Act of 1972, which prohibits gender discrimination in education. Title IX defines “sexual harassment” to include sexual assault, sexual exploitation, relationship violence and stalking.

The new regulations narrow the jurisdiction of Title IX and the definition of “sexual harassment” falling within that title. The new Title IX regulations require fairness for all parties and certain new procedures to be permitted, including cross examination of parties and witnesses. The new rules assume that schools will have two processes for addressing sexual harassment, one addressing Title IX-covered sexual harassment and another addressing sexual harassment and other discrimination and harassment not covered by Title IX. The new regulations, a detailed summary of which may be read here, became effective on August 14.

For most schools, this means that they may decide to have a Title IX policy and procedure for Title IX-covered sexual harassment and a policy against discrimination, harassment, sexual violence and retaliation and related Office of Institutional Equity Procedures for all other discrimination and harassment (including gender discrimination and retaliation under Title IX, but which is not sexual harassment).

Princeton University, for example, will implement both a “Title IX Sexual Harassment policy” and “University Sexual Misconduct policy,” which are “inter-related and must be read together,” a recently updated university webpage said. The university’s policy will address “conduct falling outside the jurisdiction/scope of the federal Title IX regulations,” according to an August 3 release about the new procedures.

Smaller colleges will face more obstacles creating and carrying out a dual process due to a lack of financial and staffing resources. Some colleges were already challenged by having to implement just the Department of Education’s regulations. The institutions were given about three months to make the changes at the same time they were dealing with the coronavirus pandemic and preparing for the fall semester, which also put enormous strain on staff members.

The full new rule, a 554-page document, may be viewed on the Federal Register’s website here and a nine-page summary may be viewed on the Department of Education’s website here. Contact David Gunning or any member of our Public Law team for assistance.

Immunity updates from Columbus, Washington: Will COVID waivers be necessary?

Two pending immunity measures may give some hope to private, public, nonprofit and educational entities in Ohio that face the specter of defending themselves against claims made by persons affected by COVID-related loss or injury.

On July 27, Republican leaders in the U.S. Senate introduced a bill that would shield all Americans from liability in any federal or state court action due to the transmission of the coronavirus between December 1, 2019 and October 1, 2024. Styled the “SAFE TO WORK Act” and sent to the Judiciary Committee, the bill provides immunity from most civil actions in healthcare and all other settings. To establish liability, a plaintiff would be obligated to show by clear and convincing evidence that the defendant failed to make reasonable efforts in light of all circumstances to comply with applicable government coronavirus-related standards and guidance in effect at the time of the exposure to coronavirus; and in causing a virus-related injury, the defendant engaged in gross negligence or willful misconduct. The bill, which awaits committee action and upon passage would face strong opposition in the Democratic-controlled U.S. House, may be read here.

Meanwhile, the Ohio General Assembly has yet to pass the latest version of H.B. 606, which has sat dormant for the past two months awaiting House concurrence with the changes the Senate made to it. H.B. 606 would provide broad COVID-related immunity from civil judgments and professional licensure actions in healthcare settings and elsewhere, while preserving the right of plaintiffs to sue for reckless, willful or wanton conduct and the ability to attack licenses based on gross negligence.

We wrote in a previous Monday Message that the Senate’s version of H.B. 606 would prohibit class actions and strip out certain specific House language on political subdivision immunity, but it nevertheless makes any “person” – defined broadly as an individual, for-profit or nonprofit entity (including healthcare providers), estate, trust, school, higher-ed institution, government entity or religious entity – immune from a civil action for injury, death, or loss to person or property based on exposure to, transmission of or contraction of a coronavirus arising between March 9 and Dec. 31.

Passage of H.B. 606 would be welcome news for those operating and working within any of those enterprises since the beginning of the pandemic. While the bill has been stalled in the current legislative session due, at least in part, to the recent change in House leadership, we anticipate the House will take up the matter soon after it returns from its recess next week. There may be some wrangling over what appears in the final version, making timing of passage uncertain.

The chances of broad-based immunity emerging from Columbus are decidedly higher than from Washington. Organizations may wish to adopt a belts-and-suspenders approach, however, and if so our Public Law attorneys stand ready to guide you on appropriate protections to make, including liability waivers, while Congress and the General Assembly deliberate. Contact Kevin Butler or any of us for assistance with questions about liability and the need for waivers.

Along with a good portion of the country’s workforce, the Monday Message will take the Labor Day holiday off. We’ll be back in your mailboxes on September 14. If you have questions or need assistance in the meantime, please feel free to contact any member of the McDonald Hopkins Public Law team.

Have a great couple of weeks!

Teresa Metcalf Beasley
Chair, Public Law