Pandemic-related litigation against colleges and universities regarding refunds of tuition and fees is still playing out in the courts. The outcome of these lawsuits, in which students demand tuition and fee refunds because of COVID-19-era campus shutdowns, have differed, depending on the specific language in the institution’s policy. Institutions that included clear force majeure language in their institutional policies have been more successful in court than those whose policies, recruitment materials and informational websites stressed the virtues of the institution’s on-campus experience — both educational and social — without emphasizing force majeure disclaimers.

An important decision by New York’s Supreme Court Appellate Division, First Department, issued on May 19, 2026, provides helpful guidance to New York colleges and universities on the topic of how to discuss tuition and fee refunds in force majeure circumstances in institutional materials, including websites, course catalogs and brochures. The case, Tapinekis v. Pace University, 2026 N.Y. App. Div. LEXIS 3302 (May 19, 2026), contained claims and facts very similar to those addressed in two earlier cases decided by the U.S. Court of Appeals for the Second Circuit, Goldberg v. Pace University, 88 F.th 204 (2d Cir. 2023) and Tapinekis v. Pace Univ., 2024 U.S. App. LEXIS 12969 (2d Cir. May 30, 2024). Therefore, institutions in other states within the Second Circuit, specifically Connecticut and Vermont, will also find the Tapinekis ruling relevant.

In Tapinekis, a student claimed that the University’s Emergency Closings provision in the University’s academic catalog could not serve as a force majeure clause, and thus the student was due refunds when the University closed in the spring of 2020 under the New York governor’s order. In the earlier 2023 Goldberg case, the Second Circuit reviewed the identical language in the University’s Emergency Closings policy, which stated:

Occasionally, the University is confronted by the need to close because of inclement weather or other reasons beyond the University's control . . . . Although classes are planned to commence and conclude on the dates indicated in the academic calendar, unforeseen circumstances may necessitate adjustment to class schedules and extension of time for completion of class assignments. Examples of such circumstances may include faculty illness, malfunction of University equipment (including computers), unavailability of particular University facilities occasioned by damage to the premises, repairs or other causes and school closings because of inclement weather. The University shall not be responsible for the refund of any tuition or fees in the event of any such occurrence.

Mr. Goldberg sued the University, claiming breach of contract, unjust enrichment and additional claims under New York law, demanding a refund of his tuition, fees, and additional damages. The trial court rejected his claims that the Pace Emergency Closings provision should have specifically included the word “pandemic” in its list of potential issues over which it had no control, holding that the disclaimer language was both sufficiently broad and specific to include a scenario such as the COVID-19 pandemic. 

The following year, when reviewing the dismissal of Ms. Tapinekis’ claim for a tuition refund, the Second Circuit likewise found that the Emergency Closing provision barred her breach of contract claim.

In the Tapinekis state court case, which focused on the plaintiff’s claim for refunds of certain student fees, the University argued in its motion for summary judgment that the Emergency Closing provision barred Ms. Tapinekis’ claims for breach of contract and unjust enrichment because it acted as a force majeure clause that allocated the risk of events beyond the University’s control. In opposition, Ms. Tapinekis argued that the provision did not bar her claims because it did not include the term force majeure or identify a “pandemic” as a reason for its refusal to refund tuition or fees, and thus should not apply to her claims. The state trial and appellate courts rejected that assertion, stating “The ‘Emergency Closings’ provision allocated the risk of loss to students in the event of unforeseen, emergency circumstances outside of defendant’s control, including the pandemic,” and thus was enforceable against the plaintiff.

Even with this favorable ruling in Tapinekis and multiple courts’ rejection of the claim that the words “force majeure” must be included in similar policies in order to be enforceable against demands for tuition and fee refunds, a prudent approach in reviewing tuition and fee refund policies may be to include those specific words — if for no other reason than to prevent claims that the policy is ineffective because “pandemic” and “force majeure” have not been incorporated. Institutional review of disclaimers should also ensure that language is otherwise sufficiently specific enough to overcome claims of overbreadth, such as has been found by the Second Circuit in other litigation against universities stemming from the pandemic.

If you have any questions related to defense of these actions, or need advice in the development of appropriate disclaimer/force majeure language for institutional publications, contact Suzanne Messer or any of the attorneys in Bond’s higher education practice.

On May 4, 2022, Gov. Hochul signed into law A.06938B, which amends New York State Education Law by adding a new Article 13-C; §640, which prohibits degree-granting institutions and licensed private career schools from withholding transcripts of students who owe a debt to the institution. It is also unlawful under §640 for institutions to condition the release of a transcript upon the student’s payment of the debt. Finally, institutions may not charge a higher fee or provide less favorable treatment of a transcript request because a student owes a debt to the institution.

Read More >> Gov. Hochul Signs New State Law Prohibiting the Withholding of Transcripts of Students who are Indebted to the Institution

The challenges confronted by higher educational institutions in the face of the COVID-19 pandemic have been unprecedented. Faced by legal mandates that limited gatherings and ultimately required campus closings during the spring 2020 semester, colleges and universities transitioned to instruction by remote means almost overnight. While it was not the semester anyone had planned for, institutions carried out their missions to educate and devoted significant efforts and resources to supporting their students.

Read More >> COVID-19 Student Refund Lawsuits: Has the Tide Turned in New York?

On July 19, 2017, the New York State Workers’ Compensation Board (WCB) published its final regulations implementing the New York Paid Family Leave Law (PFL). For those that may be less familiar with the particulars of this new law, beginning on January 1, 2018, virtually every private employer in New York State will be obligated to provide eligible employees with paid leave for certain qualifying family circumstances:

(1) for the birth, adoption, or placement of a new child;
(2) to care for a family member with a serious health condition; or
(3) for a qualifying exigency arising from a family member’s military service.

PFL will be phased-in over the next four years and can be funded through employee payroll deductions. In 2018, for example, eligible employees will be entitled to take up to 8 weeks of paid leave for a qualifying reason.  Significantly, and unlike federal Family and Medical Leave and state disability benefits, PFL is not intended to cover an employee’s own serious health condition.  Instead, PFL is intended to complement New York’s existing state disability insurance program.  Some additional PFL fundamentals can be found on Bond’s Labor & Employment Law Blog – “New York Labor and Employment Law Report” at https://www.bsk.com/new-york-labor-and-employment-law-report.

Our focus today is on several frequently asked questions regarding PFL that we have received from our higher education clients.

Question:  Are private colleges and universities covered by PFL?

Answer:  Yes.  Private colleges and universities are deemed to be covered employers under PFL. However, as not-for-profit organizations, they may have some employees who are not covered by PFL.  Specifically, employees engaged in a “professional” or teaching capacity for nonprofit educational institutions are excluded from the definition of “employee” under the law.  Institutions can extend coverage to these exempt classes of individuals if they choose to do so, but this is not required.

Question:  Are public institutions covered by PFL?

Answer:  No, to the extent that such institutions fall within the definition of a “public employer”, which includes the state, a political subdivision of the state, a public authority, or any other governmental agency or instrumentality.

Question:  Can public institutions voluntarily choose to provide benefits under the PFL law?

Answer:  Yes.  Public employers are permitted to opt-in to PFL. The process for opting-in is slightly different for unionized and non-unionized employers.  If a public employer chooses to cover its non-unionized workers, it must provide 90 days’ advance notice of its decision to opt-in to not only the WCB, but to all employees who will be required to make PFL contributions. In order for a public employer to cover/opt-in its unionized employees, the public employer must engage in collective bargaining and reach consensus / agreement with the applicable union.  Once an agreement is reached, the employer must notify the WCB that an agreement has been reached and provide certain information to the WCB.

Question:  Are higher education institutions who currently provide voluntary state disability insurance coverage (DBL) to their employees also required to provide PFL?

Answer:  No.  However, if these institutions currently provide voluntary DBL coverage to their employees, they must notify both the employees and the WCB whether they will also provide voluntarily PFL coverage. Notification must be made by no later than December 1, 2017.

Question:  Are student employees entitled to PFL?

Answer:  Yes, provided they satisfy the requisite eligibility criteria. Student employees are treated in the same manner as any other employee.  If the student employee is regularly scheduled to work at least 20 hours per week, he/she is eligible to take PFL after he/she has been employed for 26 weeks.  If the student employee is regularly scheduled to work less than 20 hours per week, he/she is eligible to take PFL after working 175 days.

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For more information and continued updates on PFL, please visit the New York Labor and Employment Law Report at https://www.bsk.com/new-york-labor-and-employment-law-report.

If you have any questions about PFL, please contact the authors of this post, any of the attorneys in our Labor and Employment Law Practice, or the Bond attorney with whom you regularly work.