January 27, 2021

How Higher Education Institutions Can Navigate A Pandemic And Changing Legal Landscape

The risks and compliance hurdles surrounding reopening higher education institutions in the face of COVID-19 are a cause for concern. Colleges and universities must make their way through a new legal landscape and ensure that government grants are properly allocated, employees and students are kept safe, and stakeholders across campus receive consistent and transparent communication to ensure a safe and orderly return to school. Goodwin recognizes the challenges of navigating these unchartered waters and addressed these concerns in its annual Higher Education Symposium, which brought together Goodwin lawyers and administrators from some of the top institutions in the U.S. to provide insight on how to plan for a safe reopening and mitigate risk. Here are the highlights:

Novel Issues Facing Higher Ed

Keri Godin, Senior Director, Office of Research Integrity, Brown University, said that universities must be cautious of research-related misconduct in the face of increased working from home and given the nature of the rapid funding mechanism we are seeing from the National Institute of Health and the National Science Foundation, among others. “We should expect an increase in allegations in the months and years to come given the perfect storm that COVID-19 has created.”

David Bunis, Senior VP and General Counsel, Worcester Polytechnic Institute, said that universities must also evaluate how their path to reopening impacts surrounding communities, noting that WPI maintains constant communication with the Department of Public Health in Worcester. “We are part of a community and there are legitimate concerns about how we populate our campuses and if there is a threat to the surrounding community. We want to be on the same page as government and public health officials responsible for our community.”

How to Reopen Safely, Potential Liabilities

“There are so many different stakeholders and a unique hierarchy; you don’t just have a CEO that you report to, you have the Board, the President, faculty, students and alumni. You have to communicate with all these different stakeholders in order to reach a decision as to how you should approach reopening.” — Roberto Braceras, Goodwin

Laurie Leshin, Ph.D., President, Worcester Polytechnic Institute (WPI), said that creativity and communication is key to safely reopening campus. WPI has adjusted its orientation and graduation activities to ensure that “traditions are reimagined but not lost” and Leshin emphasized that communication has been crucial in WPI opening its doors. “We have done town halls ... every two to three weeks since March. You can’t communicate enough.”

Regarding liabilities, Gerry Leone, General Counsel, University of Massachusetts, said universities must “engage in transparent notice to your students and their families in the Three A’s: Acknowledgement, Affirmation and Agreement. If students and their families affirm, acknowledge and agree that they know that this is not going to look like it did before at least right now and they know what the expectation should be then they sign up or they don’t.”

How to Balance Employee Concerns and Leaves of Absence

 “As you think about how to apply EEOC guidance right now, in regards to individuals who have a CDC listed condition that might put them at risk, remember that it is just a guidance right now and not settled law. It remains to be seen how court’s might interpret the CDC list of conditions as something that triggers an ADA combination and something to keep in mind when you are proving ADA accommodations rather than general accommodation for COVID-19.” — Scott Merrill, Office of the General Counsel / Human Resource Management, Northeastern University

“Following a leave of absence, an employee must be returned to their previous position or an equivalent role within six months. If they are demoted or terminated there is going to be a presumption that those changes were in retaliation for taking protected leave. The only way to overcome that is by providing a clear and convincing evidence that there was a legitimate reason and not retaliation, which is a tough hurdle.” — Christina Lewis, Goodwin

Complying with Federal Funding

“Universities and Research entities face daily challenges both with regard to the categories of risks they face and then how to deal with investigation compliance lapses and the consequence of those lapses can be particularly significant when you involve Federal funding.” — Jennifer Chunias, Goodwin

“Higher Education institutions that have received funds under the CARES Act, to address financial difficulties arising from the pandemic, will likely carry a risk that the government will be closely monitoring how those funds are used and making sure that institutions comply with all applicable requirements under the Cares Act.” — Courtney Orazio, Goodwin

Alicyn Cooley, Executive Director, Program on Corporate Compliance and Enforcement, New York University School of Law, cautioned universities that are receiving government aid, noting the Department of Justice has made it clear that it will prioritize enforcement actions relating to the CARES Act and other COVID-related stimulus and noted that we’ve already begun to see indictments filed in the Southern District of New York. “The reason we have not seen a lot of FCA enforcement actions on the civil side though, is because the investigations begin with a qui tam action which is filed under seal and includes an initial 60 day waiting period.”

If you are interested in listening to the full-length discussions surrounding these topics, and more, please visit Goodwin’s Higher Education Symposium here.