Addressing COVID-19/Clery Act Misconceptions

Addressing COVID-19 / Clery Act Misconceptions

To clarify a common misconception surfacing lately, the Clery Act does not currently and is not anticipated to require institutions of higher education to maintain or disclose statistics of positive COVID-19 cases, as these are not crimes.

The Clery Act does require institutions to make determinations about whether or not an immediate threat to the health or safety of its on-campus community exists, as, if it does, the campus must issue an emergency notification informing of the threat and what measures individuals should take to protect themselves.

Be sure to not conflate these two actions. Informing the campus community of an outbreak of COVID-19 through the tool of an emergency notification is not the same thing as counting and disclosing numbers of COVID-19 cases. While emergency notifications may, and often do, indicate the location of the emergency, including an illness outbreak, there is no requirement that they contain personally identifying information about those impacted. Remember that timely warnings and emergency notifications are two separate and distinct types of alerts under the Clery Act. Timely warnings are reserved for Clery Act crimes that have occurred and pose a serious or ongoing threat to the campus community. Emergency notifications are used for immediate threats to health and safety, which can extend to health emergencies such as COVID-19. As a result, institutions could limit an emergency notification to only the segment of the community directly impacted by an emergency as opposed to sending it to the entire campus community. Even so, in cases of outbreaks of contagious illnesses like COVID-19, many institutions may decide not to segment a notification because of the ease of transmission to a broader population.

As a reminder, the only guidance issued by the Department of Education regarding emergency notification expectations and requirements for COVID-19 so far was released on April 3, 2020 and can be found here.

Here is the guidance itself: Notifications Regarding an Immediate Threat to Health or Safety (§ 668.46)

“The Clery Act and its implementing regulations require institutions to notify the campus community upon the confirmation of a significant emergency or dangerous situation involving an immediate threat to the health or safety of students or staff occurring on campus. The Department does not interpret the statutory language as requiring institutions to give regular, on-going updates on COVID-19 or to proactively identify positive COVID-19 cases within the campus community. The Department also does not interpret the statutory language to apply to positive COVID-19 cases among individuals who are not attending classes, working, or residing on campus or to require notifications to such individuals.

An institution may satisfy the emergency notification requirements of the Clery Act and § 668.46 as follows: (1) provide students and employees a single notification through the regular means of communicating emergency notifications informing them about COVID-19 and necessary health and safety precautions, as well as encouraging them to obtain information from health care providers, state health authorities, and the CDC’s COVID-19 website; or (2) create a banner at the top of the institution’s homepage containing that same information, including a statement about the global pandemic and a link to the CDC’s website.”

It is the minimum that campuses must do to comply with the Clery Act according to the Department of Education, the enforcement authority of the Clery Act.

As with any questions regarding formal compliance determinations with the Clery Act we recommend reaching out to Westat, a federal contractor who provides technical assistance on the Clery Act on behalf of the Department of Education, the enforcement authority of the Clery Act. Westat can be reached at [email protected] and 800-435-5985.

Clery Center will continue to share information if there is updated guidance on reporting responsibilities in relation to COVID-19. Follow us on social media (FacebookTwitterLinkedinInstagram) and sign up for our email alerts!