techdirections January 2013 : Page 17

Don’t Let Legal Issues Put You in Hot Water! A Safety and Liability Primer By Chris Zirkle zirkle.6@osu.edu P ROVIDING a safe class-room and laboratory en-vironment should be the ﬁrst priority of any career-technical and technology/ engineering education instructor. Doing so not only increases the op-portunity for student learning, but it also keeps instructors “out of hot water” with respect to legal issues of liability. In today’s litigious society, where individuals can be sued for any perceived infraction, it is impera-tive that instructors safeguard their classrooms and labs from potential problems. The High Cost of Accidents When students have accidents in the classroom or lab, several things can happen—none of them positive. First, students can be injured. From minor cuts and bruises to a major crisis requiring immediate medical care, this is perhaps an instructor’s worst nightmare. In addition to rais-ing the specter of legal consequenc-es, accidents can make students miss school, which results in lost instruc-tional time. Accidents can also happen to instructors, who may also then be absent from their job. This can result in costs for a substitute instructor and perhaps cause the lab to be out of operation until the regular instruc-tor returns, as school administrators should not allow the lab to operate Chris Zirkle is an associate profes-sor, Department of Workforce Educa-tion and Development, College of Education and Human Ecology, Ohio State University, Columbus. without an instructor fully certiﬁed/ licensed in the speciﬁc lab area. Both the instructor and the school district can incur medical costs as a result of an accident and insurance premiums for both parties may increase. In addition, property damage can also occur as a result of an accident, and any damaged equipment or tools will need to be repaired or replaced. Numerous issues must be taken into consideration in career-technical and technology/engineering educa-tion classrooms and labs when trying to prevent accidents. We can deﬁne three broad categories as relating to: O School/classroom/lab hazards O Instruction O Student learners School/Classroom/Lab Hazards For an instructor in our ﬁelds, the number of school/classroom/lab hazards can be signiﬁcant. Only the development of a comprehensive list of potential hazards and the subsequent “checking-off” that they have been ad-dressed can help ensure a safe and productive learning environment. Buildings and grounds may be the speciﬁc responsibility of the building administrator or a facilities manager, but instructors must be alert to pos-sible hazards to all students in any part of the school. If problems are found, they must be reported imme-diately It is a given that equipment and tools must be in proper working order. If there is any question regard-ing the proper condition of a speciﬁc piece of equipment or tool, it should not be used until a qualiﬁed indi-vidual has checked it. In addition, all emergency shut-offs (panic buttons), and machine guards must be in place and operational. Instructors should not remove any machine guards, modify existing guards, or construct additional guards unless permitted to do so by the manufacturer. Materials and supplies are a key component of career-technical and technology/engineering education classrooms and labs. If these items are hazardous in any way, the manu-facturer should provide a Material Safety Data Sheet (MSDS) to the school district. These documents should be kept on ﬁle by the instruc-tor and in the building administra-tor’s ofﬁce. Housekeeping addresses keeping work areas clean and free of hazards. Tools improp-erly stored or ﬂoors that are slick with grease are just two po-tential hazards that can result from a lack of care in this area. Career-technical and technology/engineer-ing education programs require adequate space to work . Most states have published guidelines for the space required for the various components of K–12 buildings and grounds, including speciﬁc program areas such as those found in career-www.techdirections.com SAFETY 17

Don’t Let Legal Issues Put You in Hot Water!

Chris Zirkle

A Safety and Liability Primer PROVIDING a safe classroom and laboratory environment should be the first priority of any career-technical and technology/ engineering education instructor. Doing so not only increases the opportunity for student learning, but it also keeps instructors “out of hot water” with respect to legal issues of liability. In today’s litigious society, where individuals can be sued for any perceived infraction, it is imperative that instructors safeguard their classrooms and labs from potential problems. The High Cost of Accidents When students have accidents in the classroom or lab, several things can happen—none of them positive. First, students can be injured. From minor cuts and bruises to a major crisis requiring immediate medical care, this is perhaps an instructor’s worst nightmare. In addition to raising the specter of legal consequences, accidents can make students miss school, which results in lost instructional time. Accidents can also happen to instructors, who may also then be absent from their job. This can result in costs for a substitute instructor and perhaps cause the lab to be out of operation until the regular instructor returns, as school administrators should not allow the lab to operate without an instructor fully certified/ licensed in the specific lab area. Both the instructor and the school district can incur medical costs as a result of an accident and insurance premiums for both parties may increase. In addition, property damage can also occur as a result of an accident, and any damaged equipment or tools will need to be repaired or replaced. Numerous issues must be taken into consideration in career-technical and technology/engineering education classrooms and labs when trying to prevent accidents. We can define three broad categories as relating to: School/classroom/lab hazards Instruction Student learners School/Classroom/Lab Hazards For an instructor in our fields, the number of school/classroom/lab hazards can be significant. Only the development of a comprehensive list of potential hazards and the subsequent “checking-off” that they have been addressed can help ensure a safe and productive learning environment. Buildings and grounds may be the specific responsibility of the building administrator or a facilities manager, but instructors must be alert to possible hazards to all students in any part of the school. If problems are found, they must be reported immediately It is a given that equipment and tools must be in proper working order. If there is any question regarding the proper condition of a specific piece of equipment or tool, it should not be used until a qualified individual has checked it. In addition, all emergency shut-offs (panic buttons), and machine guards must be in place and operational. Instructors should not remove any machine guards, modify existing guards, or construct additional guards unless permitted to do so by the manufacturer. Materials and supplies are a key component of career-technical and technology/engineering education classrooms and labs. If these items are hazardous in any way, the manufacturer should provide a Material Safety Data Sheet (MSDS) to the school district. These documents should be kept on file by the instructor and in the building administrator’s office. Housekeeping addresses keeping work areas clean and free of hazards. Tools improperly stored or floors that are slick with grease are just two potential hazards that can result from a lack of care in this area. Careertechnical and technology/engineering education programs require adequate space to work. Most states have published guidelines for the space required for the various components of K–12 buildings and grounds, including specific program areas such as those found in careertechnical and technology/engineering classrooms and labs. Sufficient and proper storage is very important. Materials must be safely and efficiently stored for easy access and to ensure accountability. Hazardous materials storage in a school building should serve four functions: (1) providing security against unauthorized use; (2) restricting or venting emissions from stored chemicals; (3) protecting the chemicals from fire; and (4) preventing unintended chemical reactions. Hazardous materials must be stored in cabinets that are approved to house these items. Fireproof cabinets are required for storing chemicals such as paint thinners, lacquers, mineral spirits, and other flammable items. Emergency provisions include such things as posting fire and tornado evacuation information, and the development of procedures to follow in case of any school-wide emergency (such as an intruder). Most schools, in response to recent incidents of school violence, have developed crisis plans and/or lock-down procedures to follow in case of such an emergency. Instructors should review and practice these procedures. Fire safety is paramount. Safely storing flammable chemicals, having functioning fire extinguishers (and individuals trained in their correct use) and a well-known evacuation route in the event of a fire, are all part of a prevention program. Electrical safety also cannot be ignored. Frayed cords should be replaced, as should receptacles that may be hazardous. Overuse of extension cords can lead to circuit overloads, which can also invite fires. Following established safety color codes, passageways can be marked, as can danger zones and restricted areas. Safety hazards on equipment can be marked using this same coding system. These systems are standardized, and follow OSHA (Occupational Safety and Health Administration) and ANSI (American National Standards Institute) guidelines. Lighting must be sufficient to enable learners to function in the classroom or lab. Nonfunctioning lights should be replaced, and if there are poorly-lit or “dead spots” in the classroom/ lab, they should be brought to the attention of the building administrator or facility manager. Adequate ventilation is a necessity in labs where dust and odors are present. Exhaust fans should be in working order, and there should be enough of them to remove the harmful materials. Some lab areas (auto collision paint booths, for example) require specialized exhaust systems to filter harmful particulates from the air. These systems may be required by the National Institute for Occupational Safety and Health (NIOSH) or another regulatory agency, and they must be operating properly at all times. Instruction Instructors with lab equipment (tools, machines, test equipment, etc.) must give students appropriate instruction as to its proper, safe use. This instruction must be documented in the instructor’s lesson plans. It is a good idea to denote any safety instruction with a “highlighter” pen, to emphasize the accomplishment of this important task. Veteran instructors sometimes adopt the attitude that “I have been doing this for years—I don’t need to write daily lesson plans.” But without a written lesson plan document, the likelihood they will be called to task if an accident occurs can increase. Instructors also cannot allow a student to operate any equipment if they have not been given proper instruction. It is important to test and “check off” students as they demonstrate the proper use of equipment. Student Learners While many students think they are invincible, they are not, and one of an instructor’s first tasks is to develop proper safety attitudes and an atmosphere where safety is priority #1. This begins with the instructor serving as a role model for safe work habits. It does little good to stress the need to wear proper safety apparel (such as safety glasses and an approved uniform), if the instructor does not follow his or her own words. In addition, when giving demonstrations instructors cannot cut corners with respect to safety— students must be shown the safe way to perform a task, each time, every time. To begin to develop this atmosphere of safety, instructors can take several steps. Discussing safety rules and lab procedures at the beginning of the year, and posting these items in a conspicuous place, is a must. Brief safety meetings, patterned after similar activities in business/industry, can make students more aware of the need for safety. Finally, the instructor must not tolerate students who will not abide by the rules for safety, and should address problems via the school-approved discipline plan. Policies and Procedures Classrooms and labs that have clearly defined policies and procedures generally operate smoothly. When students understand the instructor’s expectations, instructional time is maximized and students’ time-on-task is increased. Keep in mind that students, by the time they have entered high school, have spent thousands of hours in classrooms, with many teachers/ instructors. They have a sense of whether or not an instructor is organized and prepared. A defined set of policies and procedures is needed to cover such tasks as: • Going to the restroom/office (permission for these can easily be abused). • What to do when visitors come to the classroom/lab. • Etiquette related to use of lab phones. • Fire/tornado drill procedures. • Procedures for asking questions during lecture. Determining which tasks necessitate defined policies and procedures may be an ongoing job for the instructor, but one that should not be ignored. Classroom/Lab Rules Classroom/lab rules convey expectations for behavior and help establish a standard of civility and tolerance that guides all classroom interactions. In setting rules, a sense of structure and safety is provided for students. In determining these rules, some guidelines may be useful. These “rules for rules” are: • Involve students in the development of classroom/lab rules. Students who participate in the development of classroom/lab rules are more likely to obey them. • Make sure rules are clearly understood. Avoid the use of vague or unenforceable rules. • Have a select few rules in the classroom/lab—more is not necessarily better. • Enforce rules every time and for all students to avoid the perception of favoritism. • Make sure that students and parents accept the rules. This can be done through a “sign-off” procedure where student and parent indicate their agreement. The sign-off document becomes a part of the student’s individual student file. The Instructor as a Model Instructors must make sure to follow their own rules and the rules of the school. For example, it does little good to require students to wear safety glasses in the lab if the instructor is not wearing them. It will only take a moment for a student to spot this double standard. Clothing used for specific safety reasons in a lab should always be worn by the instructor on all occasions it is required. Instructors need to prepare students with appropriate “work ethic” and “employability” skills. The instructor can begin to develop these skills by simply treating students with respect and courtesy, by developing a genuine interest in students, and by making sure they are prepared and ready for class. Some students may not have had exposure to appropriate behaviors—consequently, modeling is extremely important. If students have never been shown the correct way to act, they have no frame of reference as to what is appropriate. Legal Issues for Instructors In today’s sue-happy society, anyone can be subjected to a lawsuit. Unfortunately, this is true in educational circles, as instructors and administrators have certainly been defendants in legal actions. As a result of this, instructors should educate themselves with respect to instructor legal issues. Some legal problems are brought on through ignorance of the law or, in some cases, through what seems to be an extreme lack of common sense. These concerns are especially high in career-technical and technology/engineering labs, where the correct use of tools and machinery, the safe use and storage of chemicals, and the need for proper instruction are of utmost importance. An oversight in any of these areas can result in injuries, damage to equipment and property, or even death (Zirkle, 1999). There are two broad types of law in the United States. The first, criminal law, addresses wrongs against society in general. For example, if an instructor comes to school under the influence of alcohol and/or drugs, the wrongdoer (the instructor) may be punished (put in jail, placed on probation, fined, etc.) under criminal laws. The second type of law is tort law, which is a civil wrong. This addresses harm inflicted on one party by another. The fundamental premise for tort law is that individuals are liable for the consequences of conduct that results in harm to others. For example, if an instructor came to school under the influence and allowed students to work in a lab without supervision (while he or she slept off the effects) and a student was injured, the instructor could be liable for any injuries the student incurs. In this case, the wrongdoer (again, the instructor) may have to pay some type of restitution to the person(s) harmed. This is usually accomplished through a lawsuit or litigation and financial damages could be awarded. Since tort law is generally associated with instructor and school legal issues, it is the focus of this discussion. Criminal law will not be discussed. Two types of torts may be committed: negligence and intentional torts. The dictionary defines negligence as “the failure to exercise that degree of care which, under the circumstances, the law requires for the protection of other persons.” It is a breach of a duty to keep others safe from harm and can arise from doing something one is not supposed to do (an act of commission) or by not doing something one is supposed to do (an act of omission). Establishing negligence has these elements: a duty; a breach of duty; and an injury; which is, in fact, proximately caused by the breach of duty. A brief discussion these elements can help illustrate the seriousness of this tort. All educators have a mandatory duty to keep their students safe from harm. In addition, specific duties include providing proper instruction and adequate supervision, maintaining equipment, facilities, and grounds, and warning students of known dangers (Cambron-McCabe, McCarthy, & Thomas, 2008). When an instructor breaches one of these duties, he or she opens the door to the negligence process. For example, an instructor might leave the classroom unattended or not show up for hall duty. Both of these would be breaches of duty. Related to breach of duty is standard of care, which defines the level, or degree, of care that the instructor must exhibit. This depends on several factors, including the age, experience, and maturity level of the students; the environment within which the incident occurs; the type of instructional activity; and the presence of external threats (Cambron- McCabe, McCarthy & Thomas, 2008). The standard of care issue is a key one for career-technical and technology/ engineering instructors, since courts have generally held that instructors in labs that may have inherent hazards (e.g., a welding lab) have a higher standard of care than academic instructors, who work in classrooms where dangers to students may be minimal. For negligence to occur, an actual injury must occur (a physical injury is the most common). If an injury occurs, instructors need to provide reasonable assistance. In most cases, this means following the school guidelines for dealing with injury, such as sending the student to the nurse. Administering first aid may be appropriate if the instructor is certified to provide it, but if not, this is best left to a qualified individual. In all cases, an accident report must be filled out to document what transpired. If an injury has occurred, proximate cause will determine whether the instructor’s breach of duty and standard of care directly resulted in harm to the student. For example, if there is a student fight in the lab and the instructor was not present, but was down the hall making copies for another class, the instructor’s negligent conduct is likely to be found the legal, or proximate, cause of the injury. If the instructor had been present, the fight would have been considerably less likely to occur. Selected Cases Related to Negligence Various court cases have highlighted the issue of instructor liability and negligence. While no instructor or content area is immune from liability concerns, career-technical and technology/engineering education classrooms and labs are at high risk because of the nature of the instruction. Consider the following court cases. A Tennessee CTE instructor was found to have acted negligently when he did not instruct students in the proper use of a specific drill bit, had not warned of the dangers associated with its improper use, and was absent from the lab when a student was injured. In a case that illustrates the risk involved in modifying equipment, a Kentucky instructor was found liable when a student was electrocuted while using a whirlpool. During his modification of the whirlpool, the instructor had failed to install a ground fault interrupter, even though one was required by the National Electrical Code. A California student not enrolled in an automotive technology class was repairing his automobile with an acetylene torch in the automotive lab. Sparks ignited a gas tank, which exploded, killing one student and causing injury to another. The instructor was negligent in this case because he failed to enforce the lab rules and regulations and provided inadequate supervision. Some instructors have been able to defend against negligence through proper instruction and recordkeeping. In a court case very similar to the Tennessee incident, a North Carolina instructor was absolved of negligence when a student disregarded the instructor’s thorough review of safety procedures and lost several fingers in an accident. The instructor had documented an extensive review of safe use of the equipment just before the accident. Intentional Torts Intentional torts occur when a person wants to bring about particular consequences (i.e., the act is “intentional”). With respect to instructors and schools, intentional torts can go in both directions. An instructor or a student could be found guilty of an intentional tort. There are several specific types of intentional torts, including assault, battery, false imprisonment, infliction of mental distress, and defamation. Assault is a threat to do harm. A student may threaten an instructor, either verbally, through words or exhibited through actions (Essex, 2012). The apprehension and fear that assault creates is sufficient for a charge of assault to be levied against an attacker. Examples of assault are verbal threats, raising a fist, or waving a tool in an unsafe manner. Battery is an actual physical act. It can be something seemingly as simple as touching or as obvious as punching or stabbing. Assault often precedes battery, as a student may make a verbal threat, then follow through with the physical act of hitting another student or an instructor. Unfortunately, the possibility of battery charges is perhaps the primary reason that instructors are now discouraged from hugging students, patting them on the back or touching them in any fashion. The gesture can be misconstrued. Questions may arise for instructors with respect to battery: If I see a student attacking another student, what are my legal responsibilities? Instructors can be held liable if they do not act and a student is injured. In this case, the instructor should have known the proper steps (usually defined by the school administration) for intervening in such a situation and followed the established protocol. With respect to breaking up student fights, instructors also may need to know what to do in case the student turns on them. Instructors have the right to defend themselves and can use force—but only for their own protection. Instructors do not have free reign to inflict punishment or additional physical harm. False imprisonment is detaining someone against his or her will. Instructors have been found guilty of this tort when they have tied children to chairs (if they wouldn’t stay in their seat), locked misbehaving students in closets, or taped a talkative student’s mouth closed (none of these are good ideas). Some physical restraint by instructors may be justified (restraining a violent student, for example), but great care must be exercised and the occurrence must be well documented in the student’s file. Infliction of mental distress involves a situation where students or instructors are subjected to flagrant, extreme, or outrageous behavior (Keeton, Dobbs, Keeton & Owens, 1984). This has attracted much attention recently, as attention to the topic of bullying and hazing of students has reached new levels. Again, instructors and schools can be held liable if they know of such events and do not act to stop them. Defamation can take two forms: spoken (slander) or written (libel) statements that damage a person’s reputation. Statements can be defamatory if they expose another individual to hatred, shame, disgrace, contempt, or ridicule (Stimmel, Stellman & Fischer, 2010). Statements made with malice or the intent to harm must be avoided, although instructors sometimes commit errors unintentionally, by making statements about a student’s behavior, academic performance, personal characteristics, and the like to other students. Instructors need to realize these types of comments usually get broadcast (and likely exaggerated or blown out of proportion) through the student pipeline. FERPA Concerns The Family Educational Rights and Privacy Act (FERPA) is a federal law designed to protect the privacy of students’ education records. Education records include any information or documentation that is recorded in any way, including records produced by handwriting, computer, email, audio, and video, among others. FERPA protects the privacy of students’ education records by setting forth strict instructions and limitations governing the release of information about students. Given the restrictions of FERPA, instructors should assume that all of their students must provide written consent that follows the format specified in FERPA before any education records may be released to anyone other than the student. Information cannot be released to any third party, including the students’ parents (unless they are under the age of 18 or defined as a dependent under the Internal Revenue Code), relatives, and friends. Particularly sensitive information includes students’ Social Security number, race or ethnicity, gender, nationality, academic performance, disciplinary records, and grades (The Ohio State University Office of the Chief Information Officer, 2007). FERPA has direct implications for a discussion on defamation. If an instructor follows the FERPA guidelines carefully, it is likely that defamatory situations will not arise. Remember that one of the main purposes of FERPA is to protect a student’s privacy. Consequently, instructors shouldn’t disclose any information that might invade a student’s privacy. If there is doubt about what can and cannot be released under the provisions of FERPA, the information should not be disclosed. Basic Strategies to Avoid Liability Problems There are some very basic ways instructors can lessen their exposure to liability concerns. For instance, most career-technical and technology/ engineering instructors are keenly aware of the need for proper instruction in the use of tools and machinery. Still, a larger number of school accidents are caused by poor safety instruction. In addition, the proper use and availability of personal protective equipment, such as safety glasses, is critical. And it is an instructor’s professional responsibility to provide instruction on the safe use of chemicals. A number of students have been burned by fire, chemicals, and hot vapors. Other chemical-related accidents have occurred from ingestion or inhalation of chemicals. Proper labeling of these materials is crucial, as the immediate identification of a given chemical may be needed immediately if a student has an adverse reaction. Finally, classrooms and labs must be kept clean. Accidents are more likely to occur in areas that have been neglected or where items are stored improperly. The “clean-up detail” most career-technical and technology/engineering instructors institute serves a worthwhile purpose. Precautions Instructors can follow these 10 simple guidelines to help ensure that students are safe, classrooms and labs are free of hazards, and that educators are protected against liability and negligence issues. 1. Don’t leave the classroom or lab unattended. If you must leave, find another instructor to cover the class. Even if it is for a short trip to the copy machine or the restroom, leaving students by themselves is a substantial risk. This can be a difficult situation for carpentry/construction instructors or others with outside working space, who may have some students outside on an assignment and others inside the lab completing another task. This often begs the question: “How can I be in three places at once?” One answer can be found in the concept of “good-faith effort.” If an instructor can verify he or she is making a concerted effort to circulate among all the students, the concern can be mitigated. Certainly, sitting in the instructor’s office is not the place to be if students are engaged elsewhere. 2. Perform assigned duties. As boring and unnecessary as it may seem, if an instructor has an assigned duty (restroom, hall, etc.), he or she should perform it. The day that is missed will be the day something will happen. If the instructor’s name is on the schedule, he or she is responsible. 3. Post classroom/lab rules and regulations in a conspicuous place. Students should have easy access to information about the behavior instructors expect in their classes/ labs. Performing this simple task also removes the all-too-common “I didn’t know we couldn’t do that” refrain. Also, give the students a personal copy of the rules and have them (and their parents) sign an acknowledgment form. Put this document in the student file. (See #5 below.) 4. Post fire/tornado drill information in a conspicuous place in the classroom/lab. In an emergency, students (and adults!) tend to forget critical information. Posting these may help alleviate this problem. It will certainly keep the instructor on good terms with the local fire marshal. 5. Start a file for each student. At the beginning of the school year (and any time a new student enters a class), a student file should be created. This file is for recording any concerns about the student that the instructor may encounter during the year. Failure to follow lab rules, unsafe behavior, absences, and discipline referrals are all examples of information that can be kept. In the event the information is needed (for a parent conference, for example), it is all in one file. This information should be kept private. (See #7 below.) 6. Keep proper records. If there are chemicals in the classroom or lab, keep a notebook to file Material Safety Data Sheets on every chemical. MSDS contain important safety information about a given chemical, including first-aid procedures. Performing this task will also help instructors and schools stay in compliance with OSHA’s Right-to- Know Law, which guarantees both students and employees the right to information, training, and education regarding toxic substances in the workplace. 7. Keep private information private. Do not discuss an individual student’s performance with another student or anyone else who is not a direct family member. Student performance should only be discussed with a student’s parent or legal guardian. Doing so avoids any FERPA issues. 8. Follow school discipline codes—don’t create “alternative discipline.” Do not discipline disruptive students by tying them to chairs or by putting them in isolation. If a student is consistently loud, disruptive, and out of control, follow the established school discipline policy. Students exhibiting these behaviors belong in the principal’s office. 9. Maintain the classroom/lab. Make certain tools and equipment are maintained to manufacturer’s specifications. Keep a log of maintenance, repairs, and any other changes to the items in the classroom or lab. Make certain volatile chemicals are properly labeled and stored in appropriate containers and cabinets. Limit access to these items. 10. Avoid “touchy” situations. Exercise great care with the touching of students in any fashion, especially students of the opposite sex. In today’s society, it is an unfortunate reality that well-meant gestures may be misconstrued. The information and recommendations in this article are designed as a general introduction, not a comprehensive guide. Instructors’ individual circumstances may vary, and may require other or additional safety measures. If an instructor has a concern, he or she should discuss it immediately with an immediate supervisor.

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