Could parents sue if a child gets COVID-19 from an unvaccinated teacher? Legal experts weigh in

President Biden renews push for COVID-19 vaccine

President Joe Biden urged Americans to get vaccinated as the COVID-19 delta variant continues to cause a surge in cases.

As the summer break winds down, more and more students are returning to the classrooms and parents are wondering how best to protect their children from COVID-19.

In addition to safety regulations such as masking up and social distancing, parents now have another factor to consider: Is anyone to blame if their child gets sick at school? What if their child gets sick from a teacher who isn’t vaccinated?

The White House said nearly 90% of educators and school staff are fully vaccinated, but children 12 years and under are still ineligible to take the shot.

If a child does get infected, legal experts tell FOX Television Stations filing a lawsuit against the school, or even a specific teacher, that prevails in court would be challenging — especially since teachers aren’t required to get the vaccine even as health officials push for a mandate.

Experts say successfully pursuing a legal battle depends on where you live.

Several states have passed COVID-19 immunity laws which protect certain businesses and governmental entities from legal liability regarding COVID-19 exposure. For example, Alabama Governor Kay Ivey signed a bill in February 2021 that gives certain industries immunity from any injury caused by COVID-19 exposure, a COVID-19 vaccine or personal protection equipment.

North Carolina-based attorney Adam Langino said that immunity can even apply to teachers.

"Other states provide near complete immunity to teachers. From the outset, that makes these claims very difficult," he told FOX Television Stations.

Some experts said a parent would also have to prove that a teacher purposely caused a child to get an infection — and a teacher simply being unvaccinated isn’t enough to win over a court, according to some legal experts.

"Lawsuits require a plaintiff to prove both harm and negligence — that an entity failed to protect someone from a reasonably foreseeable event," said Jim Burke, professor emeritus at the University of Maine School of Law.

Langino agrees.

"Some states require an injured person to prove more than just negligence, such as gross negligence, willful or wanton conduct, or an intentional wrongdoing," he said.

"A parent would have to prove that their child got COVID-19 from his or her teacher, which will be difficult," he added. "As we know, many persons that have COVID-19 are asymptomatic and they may be in contact with your child. Therefore, it will be very hard for any parent to prove their child got COVID-19 from his or her teacher as opposed to a student, the bus driver, their baby sitter, or anyone else."

Health and school officials across the country are working to find out how best to protect students from the coronavirus while school is in session.

Last month, The American Academy of Pediatrics recommended universal masking in schools, even for those who are vaccinated. The Centers for Disease Control and Prevention also last month recommended mask-wearing indoors only for students and staff who are not fully vaccinated.

Though some states, like Florida, have banned mask mandates in schools after Governor Ron DeSantis signed an executive order. However, some school districts said they will defy the order and require masks in school despite the threat of losing funding. The superintendent of the school district in Florida’s capital said Monday that he will require students to wear masks amid an increase in COVID-19 hospitalizations fueled by the delta variant.

"Many Florida schoolchildren have suffered under forced masking policies, and it is prudent to protect the ability of parents to make decisions regarding the wearing of masks by their children," he said on his website.

In addition to Florida, Arkansas, Arizona, Iowa, Oklahoma, South Carolina, Texas and Utah have banned mask requirements in public schools.

At the other end of the spectrum, California, Louisiana, New Jersey, Oregon and Washington state intend to require masks for all students and teachers regardless of vaccination status.

The Associated Press contributed to this report. This story was reported from Los Angeles.