By Attorney Louis R. Briska
In America (Version 2.0, post COVID-19 lockdown), there may be a coming wave of plaintiff’s lawsuits when the various state stay-at-home orders and public gathering limitations are lifted and people begin frequenting businesses and churches.
These lawsuits, rooted in a theory of negligence, will allege that Church XYZ did not undertake all policies and protections to minimize exposure to the COVID-19 virus to its members and attendees, especially before, during and after worship services. If there would be a death, or multiple deaths due to the virus and linked to church attendance, there could be multiple wrongful death lawsuits.
The further problem is that most public liability policies exclude pandemics as a covered risk. If this would be the case, conducting worship services has a COVID-19 risk which is not covered by insurance.
No Current Immunity from COVID-19 Liability under Federal or State Law. To date, Congress has not created some form of per se legal immunity protection for businesses and non-profit organizations for COVID-19 liability. Currently there are only federal guidelines which leave it up to each businessperson (or church administrator) as to what should be considered. The current CDC guidelines are available online. This leaves a huge gap for church administrators to determine what are reasonable safety precautions, especially in the context of reopening your church. For information purposes, Congress under the Coronavirus Aid, Relief and Security (CARES) Act granted immunity to volunteer healthcare workers against COVID-19 liability, except for harm caused due to gross negligence and reckless misconduct.
Federal Tort Reform. Over the years, there have been attempts to limit tort claims for medical malpractice and to cap damages related to such claims. Though attempts at passing federal legislation restricting medical malpractice liability have failed since the 1970s, I would hope that the Coronavirus risk is treated differently. I further hope that federal legislation is passed, in particular, creating liability immunity for businesses and churches that rely on public gatherings for financial support. If this would happen, the risks, described herein, are greatly reduced. However, with various lobby groups attempting to effect policy for their own agendas, let’s hope that the “adults in the room” prevail in this case and the necessary federal legislation is adopted.
Plaintiff’s Lawsuit-Causation. To prove negligence in a COVID-19 lawsuit, Plaintiff’s counsel must prove causation (i.e., proof that Church XYZ, caused the COVID-19 infection for Church Patient Zero). This will be difficult to prove in most cases in that people are mobile and visit many places. Did Church Patient Zero contract the virus at church, or at the gym, or the hardware store? Though this is a helpful, mitigating factor, it doesn’t eliminate the risks associated with beginning worship assembly if there is no federal law in place providing immunity for COVID-19 liability.
Back-to-Work Testing and Health Certificate. I would not rely on federal or local back-to-work testing and tracking as the “Free Pass” for worship attendance (i.e., who can attend and not attend) when the country and various states open for all business and group activities. Why? Most likely this process will not be in place in time or, if in place, it may be relied on by only a limited audience, like employers. The opening of businesses and churches will be a “hard and fast opening” (a free-for-all) and churches should have a game plan ready concerning how to reopen their particular ministry organization in a prudent manner.
Game Plan. The current CDC Interim Guidance will give church administrators and the church’s board (whether directors, elders or trustees) a starting point for its Policies concerning the COVID-19 health risk. I am certain this CDC guidance will be revised several times before general assembly, or even small group assembly, will be permitted. It will not be practical to take someone’s temperature in the narthex before entering the sanctuary, therefore, other prudent and practical strategies need to be considered.
Besides policies, there are other steps a church can take to reopen ministries and to limit COVID-19 liability risk in a prudent manner. These steps in America Version 2.0 may include knowing who has attended your worship services and when. “Head counts,” without names, may be obsolete. This, in turn, raises further questions. What can a church require and what should a church require members and attendees to do from a health precaution standpoint? Legally, can I ask a church member or attendee about his or health status, and, if so, should I inquire?
Even after the stay-at-home orders are broadly lifted, there will most likely be additional rules and CDC guidance for public gatherings. Some churches already have sophisticated “sign in” tracking software for daycare and Sunday school operations that could easily be converted for worship assembly use.
In America Version 2.0, church executives and administrators will have additional health and safety compliance duties arising from forthcoming regulations on public gatherings.
Attorney Lou Briska, J.D., C.P.A. has worked with churches and Christian schools nationwide for bond financings and construction projects for more than 30 years.
Briska was engaged as Underwriter’s Counsel for B.C. Ziegler from 1988 to 2018, including early work with Saddleback Church Pastor Rick Warren, which was just getting started on its first permanent facility at the time.
He can be reached at (262) 334-7950 or email lou@briskalaw.com.
This article is not intended to be legal advice, and the opinions and statements are the author’s, not necessarily those of Church Executive.
Briska has created a general information booklet entitled “Reopening Ministry Operations.” It’s available for $550 ($200 off the $750 price) for Church Executive readers. Order by calling Tammy at (262) 334-7950 or by emailing lou@briskalaw.com
