Cases & Developments

Updated guidance from the Equal Employment Opportunity Commission (EEOC) on COVID-19 and the Americans with Disabilities Act, the Rehabilitation Act, and Other EEO Laws. With the end of the COVID-19 Public Health Emergency, the EEOC updated 30 questions in its Technical Assistance Questions and Answers Guidance including questions on disability-related inquiries; confidentiality of medical information; hiring and onboarding; disability and reasonable accommodation; pandemic-related harassment due to national origin, race, or other protected characteristics; return to work; vaccinations; and the definition of “disability” under the ADA/Rehabilitation Act as it relates to COVID-19 and Long COVID. 

Opinion & Order granting Defendant’s Motion for Summary Judgment.  Plaintiffs, two students at Oregon State University during Winter, Spring, and Fall quarters of 2020, on behalf of themselves and a putative class, brought contract claims against the University after it ceased in-person instruction and closed campus facilities due to the coronavirus epidemic. Assuming that plaintiffs had a valid contract with the University with terms including in-person instruction and access to campus facilities, the court nevertheless granted summary judgment to the University for two reasons. First, the court held that the unforeseeable pandemic and the Governor’s Executive Orders declaring a state of emergency and prohibiting in-person operations rendered performance by the University impossible and thereby discharged the duty to provide in-person instruction and access to campus facilities. Second, the court also held that (1) plaintiffs manifested their assent to modified contractual terms by paying tuition and attending classes for the Spring 2020 quarter, which began days after the Executive Orders and the University’s announcement of the shift to remote instruction, and (2) this modification was supported by new consideration in the form of “the safety benefits of a remote education during a global pandemic as well as an extension of the deadline to withdraw from classes with a full tuition refund.”   

Order and Judgment affirming denial of class certification. Plaintiff, a student at Brigham Young University (BYU) in March 2020, on behalf of himself and a putative class, brought contract and unjust enrichment claims against BYU after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic. The district court denied certification of plaintiff’s proposed class of “all persons who paid tuition and/or the Mandatory Fees to attend in-person class(es) during the Winter 2020 term/semester affected by COVID-19 at BYU and had their class(es) moved to online only learning.” The Sixth Circuit affirmed, finding no error in the holding that the class was unascertainable because third parties might have paid tuition for many members. Plaintiff, however, contended that the class could be ascertained by looking to the Financial Responsibility Declaration (FRD) students signed upon registration. The court held, however, that because even students who registered only for online classes signed the FRD, it was administratively unfeasible for the court to inquire individually as to who had registered for in-person as opposed to online classes.  

U.S. Department of Education Notice Seeking No-Cost Extension for Higher Education Emergency Relief Fund (HEERF) Funds. The project period for most HEERF grants will end on June 30, 2023, and any unliquidated funds must be returned to the U.S. Treasury. With this Notice of Information Collection Request, the Department invites public comment on its proposed process to permit HEERF grantees to request extension of the project period beyond June 30, 2023, if they “have a thought-out plan for using their remaining HEERF grant funds to address the lingering effects and impacts related to COVID-19.” Though ED sought emergency approval from the Office of Management and Budget (OMB) by May 3, 2023, interested persons may submit comments on or before June 30, 2023. 

Opinion affirming dismissal and certifying a question to the Florida Supreme Court. Plaintiffs, two students at Florida Atlantic University (FAU) during the Spring 2020 semester, on behalf of themselves and a putative class, brought contract and unjust enrichment claims against the FAU Board of Trustees after FAU ceased in-person instruction and closed campus facilities due to the coronavirus pandemic. In affirming dismissal, the Florida Court of Appeals held that (1) plaintiffs failed to show that their express written contract with FAU offered them anything more than the ability to register for classes and (2) accordingly, enforcement of any other implied promises or expectations was barred by sovereign immunity. Noting similar lawsuits across the State, the court also certified the following question to the Florida Supreme Court: “Whether sovereign immunity bars a breach of contract claim against a state university based on the university’s failure to provide its students with access to on-campus services and facilities?”