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It’s Back to School Time: Injuries, Employment Discrimination and COVID-19 Precautions at School

Posted by Giovanna A. D'Orazio | Sep 13, 2021

Inspired by Back to School season, let's talk about suing schools in New York.

First up, personal injuries.

Public schools in New York enjoy a layer of protection provided by the Education Law's notice of claim requirement (found at Section 3813).  If you are injured at a public school, as a prerequisite to filing a lawsuit, you have to serve a notice of claim on the school district within three months of the date of your accident.  This applies to students as well as to other visitors to the property.  Public schools also benefit from the shorter statute of limitations applicable to tort (i.e., negligence) claims against public entities and municipalities of one year and 90 days. 

If you or your child are injured at a school, it is important to contact an attorney as soon as possible to ensure that notice of claim requirements are followed to the letter. 

What if you are an employee of the school?  Typically, employees in New York cannot sue their employers for negligence because of the Workers' Compensation law.  That means if you slip on a spill in the cafeteria that should have been cleaned up sooner, your remedy is in Workers' Comp and not in a lawsuit.  Employees who are injured at work can have recourse, however, if there is a third party responsible.  So, if a contractor is doing work at the school and you are injured because of its negligence, you can have what's called a third party claim against the contractor and still receive Workers' Compensation.  However, your recovery in a personal injury lawsuit will likely be reduced by what you have already received, i.e., the Workers' Comp lien.

Next up, employment issues.

Public schools are subject to the same state and federal anti-discrimination laws as any other employer, as well as the Family and Medical Leave Act.  However, when it comes to state law claims, they continue to enjoy the protection of the notice of claim requirement.  (We say “protection”, because it's a relatively short deadline and, if you miss it, you may lose your claim).   Federal claims are not affected by the notice of claim requirement. 

Complying with notice of claim requirements may be important, even if you have federal claims, because state law can be better for employees and you want to have some backup if your federal claim is dismissed.  For example, as a general matter, we would describe the case law on disability discrimination to be more favorable under state law.  New York also loosened its standard in hostile work environment cases.  Additionally, state law explicitly protects certain categories of employees where federal law either does not or the law is iffy or in flux.  For example, state law is more protective of LGBTQ employees and pregnant employees than federal law. 

In public schools, employees also enjoy some, albeit limited, First Amendment protection when they speak on matters of public concern.

Employment in public schools in New York also implicates protections offered by the Education Law, the Taylor Law (applicable to public employee unions) and the Civil Service Law…but those issues are outside the scope of this post.  The take away is that if you are having an issue or action has been taken against you, you should contact an attorney sooner rather than later given the various shorter time deadlines that may be applicable.

COVID-19 Precautions: Vaccines and Masks

Mandatory COVID-19 vaccines are a hot topic right now.  Our new Governor recently announced mandatory vaccines or weekly COVID testing for school personnel and we recently wrote a blog post on why, because the law is unlikely to be in your favor, employees should think twice about quitting over these mandates.  Masks are also part of school reopening plans, and are likewise not something to lose your job over.  Schools are in a protective relationship with their students and also have an obligation to keep their employees safe.  Agree or disagree with CDC or OSHA guidance, ignoring those recommendations is likely a larger source of liability for schools than dealing with vaccine and mask holdouts who are unlikely to have legal recourse if they quit or are fired.

This blog post should not be relied on as legal advice or creating an attorney-client relationship.  All cases depend on their own sets of facts and require entering into a retainer agreement.  If you have been injured on school property, or are an employee who has been discriminated or retaliated against and lost their job as a result, give us a call.  We're happy to see if we can help.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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