COVID-19 Guidance For Faith-Based Institutions

Highlights

COVID-19 is having an extreme effect on faith-based institutions, as gatherings of any kind have been temporarily restricted or prohibited in many spots throughout the United States and around the globe. This Holland & Knight alert answers five key questions frequently being asked by religious institutions, which should exercise caution and continue to monitor official guidance from federal, state and local governments. The coronavirus (COVID-19) pandemic is adversely affecting faith-based institutions across the world. Mass gatherings of any kind are now temporarily circumscribed or prohibited in the United States and elsewhere. This guidance addresses some of faith-based institutions' most frequently asked questions.

1. Do Religious Institutions Have a First Amendment Right to Remain Open Despite Orders to Close?

   In 1990, the U.S. Supreme Court ruled that neutral, generally applicable laws are ordinarily constitutional even if they infringe upon religious exercise. Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872 (1990). Most executive orders temporarily limiting or precluding gatherings are these kinds of limitations invoking the state's broad police power to protect the welfare, health and safety of citizens that do not have as their purpose limiting religious exercise but only as their incidental effect. To the extent an executive order targeted religious institutions for disparate unfavorable treatment, the order may offend the Free Exercise Clause. Many emergency orders contain exceptions for various events such as funerals and weddings. Read the order carefully to assess its scope.

2. Do Faith-Based Institutions Have a Duty to Inquire of and Exclude Employees Exposed to COVID-19?

   The Centers for Disease Control and Prevention (CDC) recommends that employers separate sick employees from other employees. The failure to inquire of employees about exposure to COVID-19 could give rise to legal actions for negligence and other claims against faith-based institutions. Workers' compensation insurance is elective in some states for some religious institutions. Workers' compensation claims are possible for respiratory diseases to the extent the plaintiff can establish that his or her occupation presents a particular hazard of the disease occurring so as to distinguish other occupations. Religious institutions without workers' compensation insurance may be able to turn to general liability coverage to insure against this risk or they will have to self-insure.

   The Occupational Safety and Health Act (OSH Act) exempts religious organizations which employ only individuals who perform "religious services," but not those that employ one or more persons in "secular" activities. 29 C.F.R. § 1975.4(c)(1). Specifically, the Occupational Safety and Health Administration (OSHA) takes the view that the Act protects secretaries and maintenance workers of large churches and religious institutions; employees of a private school or orphanage owned or operated by a religious organization, and commercial...