Advantage Member Exclusive

Reopening Your Church during the Pandemic—A Discussion of Church Management Issues

On-Demand Webinar: 10 questions that church leaders face right now when it comes to reopening their buildings during the COVID-19 pandemic.

Loading the player...


Editor’s Note. This video is part of the Advantage Membership. Learn more on how to become an Advantage Member or upgrade your membership.

Church Law & Tax Advantage Members get a front-row seat to a recent panel discussion exploring 10 questions that church leaders face right now when it comes to reopening their buildings during the COVID-19 pandemic.

Matthew Branaugh, content editor for Church Law & Tax, hosted the breakout session, which occurred immediately following a leadership roundtable discussion on June 30, 2020, titled, “Reopening Your Church.” Branaugh was joined by:

Don’t miss these highlights from their conversation, outlined by starting time as an exclusive courtesy to Advantage Members:

1:07: Vonna Laue introduction

1:49: Nathan Adams introduction

2:46: Holly Hammar Lear introduction

3:38: Lear discusses how her church decided to reopen its building, including:

  • the factors contributing to the decision, such as health department recommendations and case counts; and,
  • the steps her church has taken as a part of reopening, including adding an additional service and determining a policy for mask-wearing.

6:20: Should church leaders listen to local, state, or federal officials—or all of the above—when it comes to public-gathering directives? Adams provides an answer, including:

  • an explanation on the hierarchy of government rules, laws, and ordinances; and,
  • common ways churches fall under that hierarchy.

8:57: The pandemic forced many churches to add digital giving options for congregants. As congregations reconvene face to face, will the traditional passing of the plate re-emerge? And will those recently added digital options fade away? Laue explores both of those questions, plus takes a big-picture view on the internal controls needed to ensure new ways of taking physical collections—as well as those of the digital variety—don’t create new vulnerabilities for churches.

12:21: Lear describes the precautions her church took before, during, and after restarting in-person services, drawing upon her experience in the medical field to shape the church’s communications, traffic flows, building signs, offering collections, the administration of communion, and more.

15:41: What happens if someone attends a church service and becomes ill with COVID-19 soon after? Adams explains the legal duties and the privacy concerns that may arise for church leaders under such a scenario.

18:50: Regarding a possible COVID-19 case within a church, Lear addresses the ways leaders will need to think through who may have been exposed, and what needs to be monitored and communicated going forward.

21:41: Should churches facing significant budgetary challenges begin making big expense cuts now? Laue discusses the giving fluctuations some—but not all—congregations have experienced since the pandemic hit. She also encourages leaders not only to take a cautious, thoughtful approach before making dramatic cuts, but also to evaluate ways to reinforce their cash situations before instituting those changes, such as talking with lenders and vendors about flexibility with payment due dates.

26:59: Adams provides a quick overview of employment law issues that churches must bear in mind if there is a point in time when they need to lay off pastors or staff. He briefly describes considerations related to protected classes of workers, the meaning of “employment at will,” and the role of severance agreements.

31:09: What should churches do about toddlers, children, and youth? Lear describes the steps her church took to account for the unpredictability that comes with the congregation’s youngest participants, making certain precautions were taken while remaining as inclusive as possible.

34:06: Temperature-taking has become a common step used by many businesses and organizations as a way to minimize the possibility of sick individuals from entering their buildings. But what privacy concerns and other legal issues arise because of such a practice? Lear talks about the temperature-taking measures, based on her medical experience, as well as other questions churches will want to ask congregants before allowing them to enter. Adams tackles the privacy concerns and reminds leaders of the obligations that can arise when they find out in advance that someone may be ill.

40:45: Concluding thoughts

Stay updated on the latest COVID-19 news and advice from Church Law & Tax, visit: www.ChurchLawAndTax.com/Coronavirus.

Supreme Court Endorses Some Aid to Parents of Religious School Students

Parents of religious school students may receive state aid, Supreme Court says.

On June 30, 2020, the United States Supreme Court ruled in a 5–4 decision that a scholarship program enacted by Montana’s state legislature, which denied funds for use in religious schools, was an unconstitutional restriction on the free exercise of religion. This decision will allow religious schools, at least in some cases, to benefit from financial aid made available to all other kinds of schools.

Montana’s scholarship program

In 2015, Montana’s state legislature sought “to provide pa­rental and student choice in education” by enacting a schol­arship program for students attending private schools. The program grants a tax credit of up to $150 to any taxpayer who donates to a par­ticipating “student scholarship organization.” The scholarship organizations then use the donations to award scholarships to children for tuition at a private school.

So far, only one scholarship organization, Big Sky Schol­arships, has participated in the program. Big Sky focuses on providing scholarships to families who face financial hardship or have children with disabilities. Scholarship or­ganizations like Big Sky must, among other requirements, maintain an application process for awarding the scholar­ships; use at least 90 percent of all donations on scholarship awards; and comply with state reporting and monitoring re­quirements.

A family whose child is awarded a scholarship under the program may use it at any “qualified education provider”—that is, any private school that meets certain accreditation, testing, and safety requirements. Vir­tually every private school in Montana qualifies. Upon re­ceiving a scholarship, the family designates its school of choice, and the scholarship organization sends the scholar­ship funds directly to the school. Neither the scholarship organization nor its donors can restrict awards to particular types of schools.

The Montana legislature allotted $3 million annually to fund the tax credits, beginning in 2016. If the annual allotment is exhausted, it increases by 10 percent the following year. The program is slated to expire in 2023.

The “no-aid” provision and “Rule 1”

The Montana legislature also directed that the program be administered in accordance with the Montana state constitution, which contains a “no-aid” provi­sion barring government aid to sectarian schools. In full, that provision states:

Aid prohibited to sectarian schools. . . . The leg­islature, counties, cities, towns, school districts, and public corporations shall not make any direct or indi­rect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, acad­emy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.

Shortly after the scholarship program was created, the Montana Department of Revenue promulgated “Rule 1” that prohibited families from using scholar­ships at religious schools. It did so by changing the definition of “qualified education provider” to exclude any school “owned or controlled in whole or in part by any church, re­ligious sect, or denomination.” The department ex­plained that Rule 1 was needed to reconcile the scholar­ship program with the “no-aid” provision of the Montana constitution.

The Montana Attorney General disagreed. In a letter to the department, he advised that the Montana constitution did not require excluding religious schools from the pro­gram, and if it did, it would “very likely” violate the United States Constitution by discriminating against the schools and their students.

Petitioners sue the Department of Revenue

Three mothers (the “petitioners”) enrolled their children in a private Christian school in northwestern Mon­tana. The school meets the statutory criteria for “qualified education providers.” It serves students in pre-kindergarten through 12th grade, and petitioners chose the school in large part because it “teaches the same Christian values that [they] teach at home.”

The child of one petitioner has already received scholarships from Big Sky, and the other petitioners’ children are eligible for scholarships and planned to apply. While in effect, how­ever, Rule 1 blocked petitioners from using scholarship funds for tuition at a Christian school.

To overcome that obstacle, petitioners sued the Department of Revenue in Montana state court. They claimed that Rule 1 discriminated on the basis of their religious views and the religious nature of the school they had chosen for their children.

The trial court concluded that Rule 1 was not required by the no-aid provision, because that provision prohibits only “appropriations” that aid religious schools, “not tax credits.” The ruling freed Big Sky to award scholarships to students regardless of whether they attended a religious or secular school.

For the school year beginning in fall 2017, Big Sky received 59 applications and ultimately awarded 44 scholarships of $500 each. The next year, Big Sky re­ceived 90 applications and awarded 54 scholarships of $500 each. Several families, most with incomes of $30,000 or less, used the scholarships to send their children to the Christian school the petitioners’ children attended.

The state supreme court reverses earlier ruling

In December 2018, the Montana Supreme Court reversed the trial court. The state supreme court ruled that the program aided religious schools in violation of the no-aid provision of the Montana constitu­tion.

In the court’s view, the no-aid provision “broadly and strictly prohibits aid to sectarian schools.” The scholarship program provided such aid by using tax credits to “subsidize tuition payments” at pri­vate schools that are “religiously affiliated” or “controlled in whole or in part by churches.” In that way, the scholarship program flouted the state constitution’s “guarantee to all Montanans that their government will not use state funds to aid religious schools.”

The US Supreme Court declares Rule 1 unconstitutional

The United States Supreme Court agreed to review the case, and in its 5–4 decision written by Chief Justice John Roberts, concluded that Rule 1 was an unconstitutional restriction on the free exercise of religion. The Court rejected the claim that the Montana scholarship program was an unconstitutional establishment of religion:

We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs. . . . Any Establishment Clause objection to the schol­arship program here is particularly unavailing because the government support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools.

The Court relied heavily on its recent ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), in which it ruled that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny.”

In Trinity Lutheran, Missouri provided grants to help nonprofit organizations pay for playground resurfacing, but a state policy disqualified any organization “owned or controlled by a church, sect, or other religious entity.” Because of that policy, an otherwise eligible church-owned preschool was denied a grant to resurface its playground. The Court concluded that Missouri’s policy discriminated against the church “simply because of what it is—a church,” and so the policy was subject to the “strictest scrutiny,” which it failed.

The Court, in Trinity Lutheran, acknowledged that the state had not “criminalized” the way in which the church worshiped or “told the church that it cannot subscribe to a certain view of the Gospel.” But the state’s discriminatory policy was “odious to our Constitution all the same.”

Here, too, in the Montana case the Court concluded:

Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school. . . . The provi­sion plainly excludes schools from government aid solely be­cause of religious status,” just as in Trinity Lutheran. . . . The Free Ex­ercise [of religion] Clause protects against even “indirect coercion,” and a State “punishes the free exercise of religion” by disqual­ifying the religious from government aid as Montana did here.

The Court continued:

The Montana Supreme Court should have “disre­garded” the no-aid provision and decided this case “con­formably to the Constitution” of the United States. That “supreme law of the land” condemns discrimination against religious schools and the families whose children attend them. They are “members of the community too,” and their exclusion from the scholarship program here is “odi­ous to our Constitution” and “cannot stand” (citing Trinity Lu­theran).

What this means for churches with religious schools

Churches or denominations with religious schools should note the following significant points regarding the Supreme Court’s decision:

  1. Most importantly, this case will allow religious schools, at least in some cases, to benefit from financial aid made available to all other kinds of schools (i.e., public and private secular schools). Religious schools cannot be excluded from such aid solely on the basis of their religious status. As the Court concluded, religious schools are “members of the community too,” and their exclusion from the scholarship program here is “odi­ous to our Constitution” and “cannot stand” (citing Trinity Lu­theran).
  2. This case may contribute to a greater degree of school choice, depending on current and future state-enabling legislation.
  3. The trial court in this case noted that the no-aid provision in the Montana constitution prohibits only “appropriations” that aid religious schools, “not tax credits” to donors.
  4. The Supreme Court noted that any Establishment Clause objection to the Montana schol­arship program “is particularly unavailing because the government support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools.” In other words, the primary beneficiaries of the scholarship program were parents who were empowered to use scholarships to pay for the tuition of their children in a school of their choice. The fact that this might include a religious school did not make such schools the primary beneficiary.
Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

Dynamic Cash-Flow Forecasting is Key to Managing Rapid Change

Budgeting during a time of rapid change is a matter of ditching the annual budget and doing some dynamic cash-flow forecasting and planning.

Q: Our church has always tried so hard to stick to our budget. What do we do about budgeting in times of rapid change and uncertainty? What are some strategies for preserving cash, if that’s one of the things we should be doing?


Here’s some fairly radical advice as it relates to budgeting—radical in the sense that this is not conventional church financial management wisdom: Stop focusing on your regular annual budget. For churches experiencing rapid changes in their giving levels, the annual budget developed months ago is largely irrelevant.


Looking for help with other critical church finance topics? Pick up the second edition of Batts’

Church Finance: The Church Leader’s Guide to Financial Operations


I realize that as a matter of church governance and policy, you might have to have a budget. But what you planned when you developed that budget is no longer reality. Your spending levels and spending categories most likely have changed. Your revenue levels may be very different. So, what do you do?

Stop focusing on what you’re calling the budget and start doing what I call dynamic cash-flow forecasting and planning. That may sound like a fancy term. Dynamic just means it’s changing. It’s moving. And cash-flow forecasting and planning means estimating what’s going to happen, as best you can, and continuously updating your estimate based on new developments as they unfold.

Forecast this way each week over the next few months. Estimate as best you can, and adjust the forecast frequently based on new developments.

What dynamic cash-flow forecasts look like

Weekly cash-flow forecasts could start with a spreadsheet in which you start with your beginning cash and then project your expected cash inflow and your expected cash outflow. Put simply: cash inflow, which might include borrowing, is cash that’s coming into your church. And then cash outflow, including debt service—is whatever cash is going out for whatever purpose. And then, of course, the difference between your expected inflow and your expected outflow is your expected net cash flow. Add your beginning cash to your expected net cash flow; this would be your expected ending cash.

Forecasting also includes modeling different scenarios with different assumptions. If giving for your church so far is relatively flat, you should model one scenario that shows your giving level staying flat. You might also want to model a scenario of your giving level going down by 10 percent or 15 percent, or whatever makes sense to you depending on your current circumstances and trending. You might want to run various scenarios and update them each time as you have better information about what seems to be happening.

Weekly cash-flow forecasts should be developed for a reasonable and appropriate period of time in the future. I would suggest at least eight to ten weeks out. A forecast much shorter than that has little value for cash-flow planning and strategic decision-making. And in a highly dynamic environment, a forecast much longer than that is likely to have less reliability.

Rolling budgets

Rolling budgets are an alternative to annual budgets suitable for some churches to use as their regular approach to budgeting. Maintaining weekly cash-flow forecasts is an accelerated version of maintaining rolling budgets. Maintaining rolling budgets is not a “do it once a year” approach to budgeting. (I discuss this process on pages 18 and 19 of Church Finance: The Church Leader’s Guide to Financial Operations.)

Churches that are experiencing rapid growth are good candidates for rolling budgets, since their revenue and expense levels change more rapidly than a full-year budget is typically designed to address. Normally, for churches that utilize rolling budgets, I would recommend updating the rolling budget approximately quarterly. But these are not normal times. For this reason, I recommend updating it weekly—or every time you learn or observe something new and different. Doing this allows you to better manage cash and financial activities during a dynamic or very challenging, rapidly changing season.

Editor’s note. For additional details on dynamic cash-flow forecasting and planning—along with a helpful PowerPoints on the topic—see the free video of Mike Batts’s webinar with Church Law & Tax.

Protecting and preserving cash

Now, regarding protecting and preserving cash. While this is not conventional financial management, I suggest churches consider drawing on a line of credit—if you have a line of credit available. Borrowing money to pay operating expenses is a very high-risk proposition, and I am not saying you want to spend the borrowed funds on operations. Only do so if it’s deemed absolutely essential—and only if you have a viable plan to pay off the borrowed funds.

The main reason I suggest this is the risk that the bank may curtail your line of credit if it is not used. Banks curtailed lines of credit significantly during the Great Recession and it can easily happen again. Borrowing the funds can prevent a scenario where you go to borrow the funds later. . . only to be told by the bank that it has frozen your line of credit due to financial concerns. (Don’t forget to consider FDIC insurance levels with respect to your bank deposits. If you have significant bank account balances, you may wish to diversify the funds among multiple banks—banks also have economic risks in the current environment.)

For churches that do not have a line of credit—and if you, again, want to preserve cash—you may want to consider carrying a balance on a credit card account. Again, I stress that this is not traditional advice. It will be important to review your modeling—looking at the future. Maybe you have a loan that has been approved but not yet funded. This means, though, that those funds should be coming in. In the meantime, you could cautiously use the credit card in order to stay afloat until you have the needed funds from, say, the PPP money. When you are more financially stable, you would pay off the credit card. Keep in mind, though, that this is very short-term strategy.

Michael (Mike) E. Batts is a CPA and the managing partner of Batts Morrison Wales & Lee, P.A., an accounting firm dedicated exclusively to serving nonprofit organizations across the United States.

Are We Protecting Our Youth Ministry?

12 question checklist to assess the safeguards you have in place.

Last Reviewed: February 12, 2025

Use the following checklist to gauge how your church is doing at protecting youth in its ministry.

Download a PDF version of this checklist.

As a young, newly married couple, my husband and I worked with a small group of teens through our church. Barely older than the kids we worked with, I remember our struggle to maintain boundaries. I particularly remember one girl who came from an unchurched family. She made no secret of the crush she developed on my husband.

Looking back, I recognize the risk we naively assumed. The only instruction we had from church leadership was to befriend the teens, and provide spiritual instruction and some form of entertainment. No one thought about written policies and procedures to safeguard the ministry and those involved. We were on our own. That was more than thirty years ago.

Times have changed and today’s youth worker needs to be more aware than ever of the risks involved in ministry.

Are We Prepared for Gun Violence at Church?

Discover if you’re protecting your congregation.

Use the following checklist to see if your church is well-equipped to respond if the unthinkable should happen.

Download a PDF version of this checklist.

Not so long ago, believers were able to seek a quiet, solitary moment of worship in their church sanctuaries. No locked door, or armed guard, there was no prohibited entry. In many places, those opportunities to meet God in his house (without first being cleared for admittance) are gone.

The shooting of 14 people attending a youth rally at Wegdwood Baptist Church, in Fort Worth, Texas—the bomb that exploded at First Assembly of God in Danville, Illinois, injuring 35 people—the killing of a wife, son, and fellow-member by a congregant of New St. John Fellowship Baptist Church in Gonzales, Louisiana: these are only a few examples of the violence that has shattered the peace of sanctuaries across our nation.

Does this mean we should barricade the doors, shrinking back in fear of what could happen at our church? No! This is a time not only to exercise our trust in the Lord, but to fully equip ourselves with the right tools to protect our congregation.

Is Your Data Left Unguarded?

Keep your church records and data safe with the right precautions and software.

Use the following checklist to gauge how your church is doing at protecting data.

Computers are absolutely vital to help keep a church running, but they are also vulnerable. Keep your church records and data safe with the right precautions and software. We’ve compiled the following simple tips to help you secure your valuable information.

Download a PDF version of this checklist.

Strategic Plans

  • One database is enough. If you’re using multiple databases to store information, the more you’ll need to protect. Try to consolidate your data so you can better secure it.
  • Guessable passwords. Are your passwords guessable? Avoid using words, names, or numbers that could be easily guessed by an outsider. Also, never share passwords with your coworkers.
  • Perform regular backups. Backing up your computers daily, even hourly will save you time in the future if there’s a power surge. Taking your vital records and data to an off-site location also gives you a safety if a natural disaster occurs.

Software Prevention

  • Suspicious activity. Has your Internet service been acting strangely? If new homepages, toolbars, or unwanted ads are continually appearing on your browser, update your security software immediately.
  • Don’t be fooled. Adware and spyware are softwares want to trick you into installing their software onto your computer. Never agree to install software before you know what it is.
  • Update security patches. Continually update security patches on your Windows, Internet server, and email. Sometimes these programs provide safety features to keep malicious software off of your computer.
  • The antivirus. If your church does not already own antivirus software, purchase it. If you own an older version of this software, you may need to update it since older versions do not protect against adware and spyware.

Event Planner Checklist: Is Your Church Prepared to Host a Large Event?

Use this event planner checklist to host a well-organized church event with confidence.

Last Reviewed: February 11, 2025

Use this event planner checklist to ensure your church is fully prepared to host a successful event.

Download a PDF version of this checklist.

Perhaps God has blessed your ministry with the vision and space to practice hospitality and put on a big event. Whether it’s a national conference or a smaller-scale event like a carnival night for your local community, opening your church’s doors to non-members presents many logistical challenges.

Why an Event Planner Checklist is Essential

Planning a large event requires foresight and meticulous attention to detail. Even the most well-organized events can face unforeseen challenges. Unfortunately, the more people you bring together in one place, the higher the probability of unexpected situations occurring. You might encounter uninvited guests, weather-related disruptions, or even emergency situations that require immediate action.

But take heart—through proactive risk management and thorough preparation, your church can ensure a smooth event experience. By using an event planner checklist, you’ll be equipped to handle any scenario with confidence.

Church Event Planner Checklist

Here’s a comprehensive checklist to guide your event planning process:

1. Define the Event’s Purpose and Goals

  • Clarify the purpose of the event and expected outcomes.
  • Identify the target audience and estimated attendance.

2. Secure Necessary Permits and Approvals

  • Verify zoning and occupancy restrictions.
  • Obtain permits for food service, amplified sound, or special activities.
  • Confirm fire safety compliance with your local fire department.

3. Plan the Venue and Logistics

  • Reserve and inspect the event space.
  • Confirm seating arrangements, parking availability, and accessibility features.
  • Set up a clear signage system to direct attendees.

4. Budget and Fundraising

  • Create a budget covering rentals, permits, catering, and other costs.
  • Consider sponsorships or fundraising to offset expenses.

5. Safety and Emergency Preparedness

  • Develop an emergency action plan with clear evacuation routes.
  • Ensure first aid kits and medical personnel are available.
  • Coordinate with local law enforcement for crowd control, if necessary.

6. Staffing and Volunteer Coordination

  • Recruit and train volunteers for registration, security, and hospitality.
  • Assign roles and responsibilities in advance.

7. Marketing and Promotion

  • Utilize social media, email newsletters, and flyers to spread the word.
  • Encourage RSVPs to gauge attendance numbers.

8. Technical and Audio-Visual Setup

  • Test microphones, projectors, and other AV equipment.
  • Have backup power sources in case of outages.

9. Catering and Hospitality

  • Plan food and beverage offerings based on dietary restrictions.
  • Ensure proper food storage and safety measures.

10. Post-Event Follow-Up

  • Send thank-you emails to attendees and volunteers.
  • Gather feedback through surveys for future improvements.

Frequently Asked Questions (FAQs)

What should be included in an event planner checklist?

An event planner checklist should cover logistics, budgeting, safety measures, volunteer coordination, marketing, and post-event follow-up.

How can churches improve event security?

Churches can improve security by coordinating with local law enforcement, training volunteers for emergency response, and having clear crowd management protocols.

What are the most common challenges in church event planning?

Common challenges include unexpected attendance surges, technical issues, security concerns, and last-minute venue restrictions.

How far in advance should a church plan a large event?

Churches should begin planning large events at least 6–12 months in advance to secure venues, permits, and key logistics.

How Well Do We Screen and Train Children’s Workers?

12 question checklist to help you identify gaps in your screening process.

Use the following checklist to gauge how your church is doing at screening.

Download a PDF version of this checklist.

Carefully screening people before allowing them to work with children in your ministry costs little, but it can increase safety greatly. Here’s why. Background screening can:

  • deter child predators from applying to work in your ministry, reducing the likelihood of child sexual assault.
  • demonstrate that your ministry has taken reasonable care to safeguard its members.
  • reduce your liability in court if you should accidentally hire someone who commits a crime.
  • help you learn if someone has been convicted of a crime in the past that may lead to future problems.
  • offer a glimpse into the candidate’s past work performance and why he or she is seeking a new ministry position.
  • give you information about a person’s character, skills, knowledge, and suitability for a particular position.

More than a criminal background check

Background screening and criminal background checks are similar terms that can be confused with one another. Background screening is far more comprehensive than running a person’s name through a criminal records database.

How do you screen paid and volunteer workers?

A thorough background screen includes four components: written application, reference checks, personal interview, and criminal records inspection.

These components are the same for both paid and volunteer employees, although additional laws govern background screening for paid employment.

Because states often have additional laws employers must follow, you should strongly consider hiring a qualified agency to conduct criminal background checks on prospective employees.

Reference checks are vital

Criminal background checks are important, but reference checks are vital, says John Hein, corporate counsel for Brotherhood Mutual Insurance Company. “There’s no substitute for a reference check,” Hein says. “It’s a good indicator of whether this person will be a good fit for your ministry.”

Do We Prevent Crime at our Church?

A checklist to help you evaluate your building’s security.

Use the following checklist to gauge how your church is doing at preventing crime.

Download a PDF version of this checklist.

What Makes a Church Vulnerable?

The days of unlocking a church in the morning and leaving it open all day have gone the way of the one-room, wooden chapel. Churches today house thousands of dollars’ worth of sound equipment, musical instruments, and computers, not to mention sizable contributions. If criminals sense easy access to potential cash, it’s only a matter of time before your church becomes a target. By understanding your vulnerabilities, you can strengthen your resistance to property crimes.

Step 1: Do a Risk Assessment

The first step in knowing how to prevent burglaries, theft, and vandalism is to assess your risks. If you’re unsure how to do this, ask a security consultant or a local law enforcement agency to help you. The assessment section of this download can help you get started, but you’re also encouraged to examine the type and frequency of crimes in your area and determine if any of your policies and procedures are leaving you susceptible, such as leaving a door open all of the time or having one person be responsible for all financial records within the church office.

Step 2: Create a Security Plan

Once you know your vulnerabilities, you can create a plan for solving them. Your security plan should include:

  • An objective: What are you trying to achieve? In what time frame?
  • An analysis: How can the problems be solved? What problems take first priority?
  • A training component: Is staff trained in security awareness? What role should staff members and volunteers play in an emergency situation?
  • Implementation: What steps will we take to improve security in the next one to five years?

Step 3: Take Action

Knowing what makes your church vulnerable and what you can do about it gives you a road map to follow. Even if your church has improved security in the past, it makes sense to review your systems and procedures regularly, to make sure you haven’t missed anything or that new susceptibilities haven’t crept in.

Do You Know How to Select Church Insurance?

16 questions to help select and retain your church’s insurance.

Use the following check list to gauge how your church is selecting insurance.

Download a PDF version of this checklist.

Why Learn about Insurance

True story: A pastor arrived at his church property only to witness the entire building burning in flames. It was a total loss. The following morning, as he wondered where the church would meet, and whether they had enough coverage to rebuild, he found out the church was underinsured. It would cost well over $1 million to rebuild what they had lost. But with only $700,000 in coverage, what were their options?

True story: After carefully performing reference and background checks, a church hired a part-time youth pastor. One year later, when he admitted to engaging in inappropriate behavior with students, he was arrested and charged. It was determined that there was prior knowledge of an incident, but no action had been taken. When the church was sued by parents, the church—without separate sexual misconduct coverage—quickly reached its general liability limit and was forced to find money from reserves, donations, and loans to pay the judgments.

Regardless of good intentions, inadequate church insurance can lead to significant and permanent losses. Some churches never recover. Though nearly every church has insurance coverage, many church leaders lack confidence in their understanding of their policies and the terminology associated with them.

So let me encourage you: You are not alone. Guidance is available, and you’re already taking important steps in receiving it. As you gain a better understanding of church insurance, as well as your church’s specific needs, you are making progress toward better safeguarding your ministry.

When it comes to church insurance, you must be informed. Get to know your insurance agent. And purchase only from a company that offers not only good prices, but good service, claims coverage, and specific knowledge of church insurance issues.

Advantage Member Exclusive

Video: Politics in the Church—What to Know for Election Season

Politics in the church is a complex topic. In this video, Richard R. Hammar offers helpful insights and tips in navigating the issues.

Politics in the church is a complex and passionate topic. But there are realities to face.

In order to maintain their exemption from federal income taxes, churches must comply with several requirements specified in section 501(c)(3) of the tax code. Two of these requirements involve political activities: Churches may not participate or intervene in any political campaign on behalf of (or in opposition to) any candidate for public office. And, churches may not engage in substantial efforts to influence legislation.

So, what do these requirements exactly mean? How should church leaders navigate them as election season heats up? And what happens if they violate them?

In this webinar offered exclusively for Church Law & Tax Advantage Members, renowned church attorney and CPA Richard R. Hammar—author of Pastor, Church & Law, Fifth Edition and the annual Church & Clergy Tax Guide—explores the requirements and discusses how leaders should approach this sensitive, and often volatile, issue.

Want more information on this topic? Check out the “Churches and Political Activities” Recommended Reading page.

Editor’s Note. This video is part of the Advantage Membership. Learn more on how to become an Advantage Member or upgrade your membership.

Loading the player...

Download the presentation slides here.

Supreme Court Rules that Title VII’s Ban on “Sex” Discrimination Includes Sexual Orientation

Why the Supreme Court’s Title VII decision changes the definition of “sex” discrimination–and how it affects churches.

In a 6–3 decision, the United States Supreme Court on June 15, 2020, ruled that an employer who fires an individual for being homosexual or transgender engages in “sex” discrimination in violation of Title VII of the Civil Rights Act of 1964.

This article will review the facts of the case, summarize the Court’s decision, and assess its significance to churches and other religious organizations.

The facts

The case involved three plaintiffs.

One plaintiff worked for a Georgia county as a child welfare advocate. Under his leadership, the county won national awards for its work. After a decade with the county, he began participating in a gay recreational softball league. Not long after that, influential members of the community allegedly made disparaging comments about his sexual orientation and participation in the league. Soon, he was fired for conduct “unbecoming” a county employee.

The second plaintiff worked as a skydiving instructor in New York. After several seasons with the company, he mentioned that he was gay and, days later, was fired.

The third plaintiff worked for a funeral home. When she got the job, she presented as a male. But two years into her service with the company, she began treatment for despair and loneliness. Ultimately, clinicians diagnosed her with gender dysphoria and recommended that she begin living as a woman. In her sixth year with the company, she wrote a letter to her employer explaining that she planned to “live and work fulltime as a woman” after she returned from an upcoming vacation. The funeral home fired her before she left, telling her “this is not going to work out.”

Each plaintiff brought suit under Title VII, which prohibits employers with at least 15 employees from discriminating in any employment decision on the basis of race, color, national origin, sex, or religion. A federal appeals court dismissed the first plaintiff’s case on the ground that Title VII’s ban on “sex” discrimination did not extend to sexual orientation. But another federal appeals court ruled that the second plaintiff could pursue his discrimination claim since Title VII’s ban on sex discrimination in employment did encompass sexual orientation. And a third federal appeals court allowed the third plaintiff’s discrimination claim to proceed for the same reason. All three cases were appealed to the United States Supreme Court.

The Court’s ruling

The Supreme Court sided with the two appeals courts that interpreted Title VII’s ban on sex discrimination to include sexual orientation and gender identity. Title VII states that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

The Court concluded that an employer that fires an employee merely for being gay or transgender violates Title VII’s ban on sex discrimination.

Application to churches and religious schools

What is the relevance of the Court’s ruling to churches and other religious organizations, including schools? Consider the following points.

1. Title VII exemption for religious organizations

Title VII section 702 contains the following exemption for religious organizations:

This title shall not apply to . . . a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

This provision permits religious corporations and educational institutions to discriminate on the basis of religion in the employment of any person for any position.

As originally enacted, section 702 permitted religious employers to discriminate on the basis of religion only in employment decisions pertaining to their “religious activities.” Congress amended section 702 in 1972 to enable religious organizations to discriminate on the basis of religion in all employment decisions. In the years following the 1972 amendment, a number of federal courts suggested that the amendment violated the First Amendment’s nonestablishment of religion clause. But in 1987, the United States Supreme Court resolved the controversy by ruling unanimously that section 702 did not violate the First Amendment’s nonestablishment of religion clause. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987).

Note that religious organizations are exempt only from the ban on religious discrimination in employment. They remain subject to Title VII’s ban on employment discrimination based on race, color, national origin, or sex—except with respect to employment decisions involving clergy.

Churches that take an adverse action against an employee or applicant for employment based on religious considerations should describe their action appropriately. Refer to the religious or doctrinal principle at issue, and avoid generic labels like “sex” or other gender- or sexuality-based labels.

2. Covered employers

Title VII only applies to employers engaged in interstate commerce and having 15 or more employees. The courts have defined “commerce” very broadly, and so most churches will be deemed to be engaged in commerce. Note that most states have also enacted their own employment discrimination laws that eliminate the commerce requirement and generally apply to employers with fewer than 15 employees.

3. Ministers

In 2012, a unanimous United States Supreme Court affirmed the so-called “ministerial exception” which bars the civil courts from resolving employment discrimination disputes between churches and ministers. The Court concluded:

We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012).

This means that all discrimination disputes involving clergy are off limits to the civil courts, not just those involving religious discrimination, including those alleging discrimination based on sexual orientation or transgender status.

4. Religious schools

Title VII contains three religious exemptions for religious schools. The first, quoted above, is section 702. In addition, Title VII, Section 703(e)(2), of the Civil Rights Act of 1964 specifies:

[I]t shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if:

  • such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or
  • if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.

A federal appeals court interpreted this language as follows in a case involving a discrimination lawsuit brought against Samford University by a theology professor:

Samford says that, even if its refusal to allow Plaintiff to teach at the divinity school were not covered by the religious educational institution exemption, it is entitled to an exemption as an educational institution substantially “owned, supported, controlled or managed by a particular religion or religious corporation, association, or society.” Samford argues for a flexible interpretation of Section 703 and points to Samford’s historical ties with the [Southern Baptist] Convention, the fact that the Convention is the single largest contributor to the university, and that its Board of Trustees requires it to report to the Convention on all budgetary and operational matters. Plaintiff, on the other hand, says Samford is not “owned, supported, controlled, or managed” by a religious association because (1) the Convention no longer appoints trustees and (2) only seven percent of its budget comes from the Convention. Neither side cites precedents interpreting Section 703, and we are aware of no precedent that speaks to the issue of what it means to be “owned, supported, controlled, or managed” by a religious association.

The court quoted from another federal court ruling construing section 703(e)(2), Pime v. Loyola University of Chicago, 803 F.2d 351, 357 (7th Cir.1986):

Is the combination of a Jesuit president and nine Jesuit directors out of 22 enough to constitute substantial control or management by the Jesuit order? There is no case law pertinent to this question; the statute itself does not answer it; corporate-control and state-action analogies are too remote to be illuminating; and the legislative history, though tantalizing, is inconclusive.

The court concluded that Samford is “in substantial part” “supported” by the Convention:

“Substantial” is not defined by the statute. But the word substantial ordinarily has this meaning: “Of real worth and importance; of considerable value; valuable. Belonging to substance; actually existing; real; not seeming or imaginary; not illusive; solid; true; veritable. Something worthwhile as distinguished from something without value or merely nominal. Synonymous with material.” Black’s Law Dictionary, 1428 (6th ed. 1990). Continuing support annually totaling over four million dollars (even in the abstract, no small sum), accounting for seven percent of a university’s budget, and constituting a university’s largest single source of funding is of real worth and importance. This kind of support is neither illusory nor nominal. So, the Convention’s support is substantial. We hold—as an alternative to our Section 702 holding—that Samford qualifies as an educational institution which is in “substantial part” supported by a religious association and that the exemption protects Samford in this case.

A federal appeals court concluded that Title VII’s exemption of “religious institutions” from the ban on religious discrimination in employment applied to the school. It based this conclusion on the following considerations: (1) the university was established as a “theological” institution. (2) The university’s trustees are all Baptists. (3) Nearly 7 percent ($4 million) of the university’s budget comes from the Alabama Baptist Convention (the “Convention”)—representing the university’s largest single course of funding. (4) The university submits financial reports to the Convention, and its audited financial statements are made available to all Baptist churches in Alabama. (5) All university professors who teach religious courses must subscribe to the Baptist “statement of faith,” and this requirement is clearly set forth in the faculty handbook and in faculty contracts. (6) The university’s charter states that its chief purpose is “the promotion of the Christian religion.” (7) The university is exempt from federal income taxes as a “religious educational institution.”

5. Concerns about sweeping effects of the Court’s decision

Responding to concerns the Court’s June 15, 2020, decision “will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today.” The Court responded:

But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.” . . . Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.

The employers also expressed concern that the Court’s decision may require some employers to violate their religious convictions. The Court responded:

We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012). And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA). That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases.

But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too. [The defendant funeral home] did unsuccessfully pursue a RFRA-based defense in the proceedings below. In its certiorari petition, however, the company declined to seek review of that adverse decision, and no other religious liberty claim is now before us. So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.

6. Justice Alito’s dissent

Justice Alito issued a dissenting opinion in which he noted, in part:

Briefs filed by a wide range of religious groups—Christian, Jewish, and Muslim—express deep concern that the position now adopted by the Court “will trigger open conflict with faith-based employment practices of numerous churches, synagogues, mosques, and other religious institutions.” They argue that “[r]eligious organizations need employees who actually live the faith,” and that compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to communicate an objectionable message.

This problem is perhaps most acute when it comes to the employment of teachers. A school’s standards for its faculty “communicate a particular way of life to its students,” and a “violation by the faculty of those precepts” may undermine the school’s “moral teaching.” Thus, if a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment. Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment.

At least some teachers and applicants for teaching positions may be blocked from recovering on such claims by the “ministerial exception” recognized in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012). Two cases now pending before the Court present the question whether teachers who provide religious instruction can be considered to be “ministers.” But even if teachers with those responsibilities qualify, what about other very visible school employees who may not qualify for the ministerial exception? Provisions of Title VII provide exemptions for certain religious organizations and schools “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on” of the “activities” of the organization or school, 42 U. S. C. §2000e–1(a); see also §2000e–2(e)(2), but the scope of these provisions is disputed, and as interpreted by some lower courts, they provide only narrow protection.

The November 2019 Church Law & Tax Advantage Member article previewed the cases before the United States Supreme Court and included five steps that churches and religious organizations holding traditionally orthodox views of human sexuality could take if the Court decided to expand the definition of “sex” under Title VII.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

What Churches Should Know About State-Mandated Sexual Harassment Training Laws

Some states now require employers to train annually on harassment, and don’t exempt churches. More states may follow suit.

Since 2018, the majority of states have enacted legislation either mandating or recommending that employers train employees on sexual harassment avoidance. This happened at great speed. It can often take decades for legal changes at the state level to become a national trend.

The speed of this development can be traced to the great cultural shift arising from the #MeToo movement, which became a high-profile cultural marker following heavily publicized Hollywood sexual harassment scandals in 2017. With sexual harassment in the workplace as a major focal point, a program to reduce the incidence of harassment at work through education became a significant objective of the #MeToo movement. Legislation to mandate such workplace training ensued.

Varying requirements by state

Most states have enacted laws that address workplace sexual harassment in some fashion. Nearly all of these have been enacted within the last two years, and many took effect just in 2020.

One impact of this rapidly evolving development has been in the widely varied approaches from state to state. No two states have statutes that follow any type of uniform approach.

Mandatory education for adults as a condition for employment was one dramatic shift in the law, but most states that have legislated in this area have done so cautiously. A number of states require only that public employees obtain some training in avoiding sexual harassment, and other states recommend training. At least seven states, however, mandate some form of training requiring private employers to provide training for their employees on creating a work environment that is informed about how to identify and avoid sexual harassment (see “How Seven States Mandate Employers to Train on Sexual Harassment” for more details).

Because the enactment of these state laws has not led to a significant public backlash, it can be expected that more states will pass these types of laws, and those that merely encourage training may follow the lead of those who have mandated such training.

How churches are affected

While #ChurchToo, a church-focused variation of #MeToo, began in 2018, mandatory harassment training in church offices has not been a visible part of that movement. Churches nonetheless may fall under these emerging state laws, since the laws are aimed directly at the employer-employee relationship, and none of the state laws carve out exceptions for churches.

While the claim of a religious liberty exception to any government-mandated training program may someday prove to have merit, these laws have not yet been challenged in court. Churches should be prepared for federal courts to take the position that workplace protection statutes are laws of general application that are not subject to a free exercise of religion exemption.

Inevitably, a church’s response to these government-mandated training programs will impact the defense of a sexual harassment claim within the church. Any church without a training program in place may be at a disadvantage in defending such a case because the church may appear to have been insensitive to the risks faced by the alleged victim. Considering this rapidly emerging trend, churches may reduce the risk of sexual harassment if they stay ahead of this issue by providing helpful training to employees to foster a healthy workplace environment.

Training requirements states have set

State laws that mandate training possess some common traits. Among them:

  • There are generally minimum thresholds in the size of the workplace before the training obligation is triggered (ranging from any employer of any size to employers with 50 or more employees);
  • Specific time periods are mandated within which the training must take place for new hires;
  • Training for supervisors is more comprehensive than for other employees;
  • In most instances, the training must be regularly repeated (such as annually); and
  • Most of the statutes are vague about what specific content the training should contain, although California and New York give substantial detail. Some states provide model training materials, although none are specifically required.

The states that do provide guidance on the content follow a general pattern that includes the following points:

  • Sexual harassment should be defined with reference to state and federal law, and include examples of harassment;
  • Employees should receive an explanation regarding their rights on how to make a harassment claim against their employer and remedies they may seek from their employer;
  • Employees should receive a description of state and federal remedies also available to victims; and
  • Employees should receive an explanation regarding how employers are legally prohibited from retaliating against employees who raise a harassment claim.

Shaping useful training for church offices

Several human resources education vendors offer products meeting the requirements of all states, including those few that give specific details regarding the content of the instruction. However, these generalized programs are provided for a wide range of businesses, not specifically religious organizations.

As a result, some of these materials might strike a tone that church leaders and other religious employers find unsuitable, even if the principles taught in these programs are generally agreeable. For example, a church that wants scripturally based instruction may find the secular foundation of the commercial materials to be out of touch with the church’s moral positions.

The best approach for many churches may be to take the general content outline suggested by their state’s law (or another state’s, if their respective state offers none) and then develop a program that can be rooted in the church’s general approach to ministry. To satisfy the emerging pattern of legal requirements for workplace training, the training should be comprehensive and run at least two hours. It should cover:

  • The broad definition of sexual harassment, including how the church’s home state defines it, as well as how it is defined as a form of sex discrimination under federal law (both “quid pro quo” harassment and “hostile environment” harassment);
  • Examples of what constitutes sexual harassment (not just reliance upon simple definitions); and
  • A description of remedies and how to obtain them.

One good model for a church’s training is the “State of Illinois Sexual Harassment Prevention Training” program prepared by the state’s Department of Human Rights. These materials need to be adapted to the law of the church’s home state. But the general outline laid out in this 35-slide PowerPoint presentation is comprehensive and offers a good template for the scope and depth of adequate training. Notably, it provides a lengthy list of behaviors that constitute sexual harassment, including gestures, the use of nicknames, and the making of certain sounds.

Caution. Every church preparing its training program will need to consider how it will approach gender identity and sexual orientation issues. While states may differ in their treatments of these issues, several states consider these issues to be subject to the same approaches used in addressing any other harassment. Since these statutes are very new, the full implications of these laws to churches have not been developed by courts. Christian churches with orthodox views of human sexuality and marriage should consult further with qualified local legal counsel regarding how they handle these specific topics.

Make preparations now

While some churches may bristle at the idea of government-mandated messages of instruction within churches, the liability exposure to churches that are unprepared for sexual harassment training is significant. Even in those states that do not expressly mandate training, the absence of a training program may be used as evidence of negligence by a church. Ascertaining the church’s best approach to risk assessment will increasingly include a full discussion of the best way to reduce the incidence of sexual harassment, which unfortunately remains an issue in churches.

Myron Steeves is founder and senior attorney at the Church Law Center of California, and dean emeritus of Trinity Law School. He is an active member of the nonprofit committees of both the California Bar Association and the American Bar Association (ABA), and chairs the ABA's Religious Organizations Subcommittee.

How Seven States Mandate Employers to Train on Sexual Harassment

The similarities—and distinctives—of these training laws that churches in each state should understand.


Editor’s note: The original version of this article, published in June of 2020, reached an initial conclusion for California and its statute’s applicability to religious organizations. However, based upon new developments and additional time to interpret the statute, this article was revised in July of 2020 to reflect a new conclusion.

Further, on July 1, 2020, Illinios changed its minimum threshold for training to one employee. This change is reflected below.

The seven states mandating employers to provide sexual harassment training require several common topics to be covered, but also vary in several significant ways.

Courts will likely apply these statutes to claims against church employers, unless the courts recognize a religious exception.

Here, then, are key highlights for each state’s statutes.

California

Beginning in 2021, all California employers with five or more employees must provide two hours of training regarding sexual harassment to all supervisorial employees, and one hour of training to other employees. California exempts nonprofit religious corporations from its fair employment laws generally. However, to the extent that religious organizations employ five or more people in taxable unrelated business, the exemption from this regulation does not apply. Thus, most churches do not need to conduct mandatory sexual harassment prevention training.

For those churches and other religious organizations that employ five or more individuals in taxable unrelated business activities, and thus must provide training, the training must take place at least once every two years. The training must be provided within six months of hire, or promotion to a supervisorial position. For those who are to be employed less than six months, the training must take place within 30 days or 100 hours of work. In determining whether the employer has five employees, all persons under the direction and control of the employer are counted, including out-of-state employees, volunteers, and unpaid interns, even though the actual training is only provided to California-based paid employees. Notably, sexual harassment training must include training that includes harassment based on gender identity, gender expression, and sexual orientation as part of the training. Cal. Gov. Code §§12950-12950.1.

Connecticut

All employers in Connecticut with three or more employees must post a notice regarding the illegality of sexual harassment, as well as remedies, in a prominent location in the workplace, and provide written materials on the subject within three months of hiring. Two hours of training are required within six months of hire. The training must be supplemented every three years. Connecticut’s law requires that employers of fewer than three employees provide the same training within six months to employees who take on supervisorial roles. Conn. Gen.Stat. Ann. §46a-54.

Delaware

Employers with 50 or more employees must provide training in sexual harassment prevention within one year of hiring, and every two years thereafter. The statute provides specific topics that must be covered in the training. Additional training is required for supervisors. However, the statute does not provide a specific length of time for the training. Del. Code Ann. title 19§711A(g).

Hawaii

All employers are subject to the state’s statute, which borders on a recommendation for training, but nonetheless reads as a requirement. The law states:

Employers should affirmatively raise the subject [of sexual harassment], express strong disapproval, develop appropriate sanctions, inform employees of their right to raise and how to raise the issue of sexual harassment, and take any other steps necessary to prevent sexual harassment from occurring. Haw. Code R. §12-46-109(g).

Illinois

Employers of one or more employees are required to provide annual training that equals or exceeds information provided by the Department of Human Rights in a model sexual discrimination prevention training program. 775 ILCS 5/2-109.

Maine

All employers of 15 or more employees are required to provide training within one year of hiring any employee, including supervisors. While the statute addressing the form of training is not specific about the duration or method of training, it provides a lengthy description of what must be covered, including a description of sexual harassment with examples, the complaint process, and prohibitions on retaliation. Me. Rev. Stat. Ann. title 26 § 807.

New York

Every employer must adopt a sexual harassment prevention policy. It must be a policy that prohibits sexual harassment, gives examples of harassment, discusses remedies, provides a complaint form, features a procedure for investigation of complaints, informs employees of their rights of redress, clearly states that sexual harassment is a form of misconduct and that supervisors who knowingly allow such behaviors to continue are subject to sanction, and prohibits retaliation.

The training must be given annually. Notably, under New York’s model policy—which must be met or exceeded by the employer through a separately drafted policy—states that sexual harassment includes harassment based on sexual orientation, self-identified or perceived gender, gender identity, and transgender status. Gender stereotyping, which is prohibited under the model policy, occurs when personality traits “are considered inappropriate because they do not conform to other people’s ideas.” N.Y. Labor Law § 201-g.

Myron Steeves is founder and senior attorney at the Church Law Center of California, and dean emeritus of Trinity Law School. He is an active member of the nonprofit committees of both the California Bar Association and the American Bar Association (ABA), and chairs the ABA's Religious Organizations Subcommittee.

Advantage Member Exclusive

A 50-State Survey on Religious Freedom Laws

A 50-state survey on key federal and state laws and court decisions affecting churches and religious freedom.

Last Reviewed: January 27, 2025

This article was adapted exclusively for Church Law & Tax Advantage Members from the 50-State Religious Freedom Laws Report, a downloadable resource available on ChurchLawAndTaxStore.com. Advantage Members who log in to the store receive 20-percent off of their purchase.

The First Amendment to the United States Constitution says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This language has been foundational to the religious liberty that millions of people have enjoyed in this country for nearly 250 years.

In those nearly 250 years, though, two key developments have unfolded through numerous decisions made in our nation’s courts.

First, the protection of religious belief is considered absolute. The government cannot make an individual or church believe—or not believe—something, nor can it create or enforce a law attempting to do so.

But second, the protection of religious exercise has limitations. Individuals and churches are free to believe whatever they wish, but when actions associated with those beliefs begin to clash with the rights and interests of others, courts say the government has more power to regulate.

This latter point—the limitations on religious exercise—has been a source of much debate and disagreement in American society, especially throughout the second half of the 20th century and the early part of the 21st century. For many, religious belief and religious exercise are inseparable, and the ability for the government to regulate religious exercise constitutes an attack on their constitutionally protected beliefs. For others, religious exercise left unchecked represents threats to the rights of others who do not share those same beliefs.

This clash has led to a maze of laws and court decisions across the country that raise a number of questions regarding how far religious freedoms extend. Understanding these developments—and their ramifications—is the purpose of this article, adapted from the 50-State Religious Freedom Laws Report.

Evolving standards

When a government law or action intentionally targets religious exercise, courts apply a high standard of judicial review known as “strict scrutiny.” This means when a party’s free exercise rights have been burdened by such intentional targeting, the government bears the burden of showing the law or action is both necessary to advance a compelling government interest and was crafted in the least-restrictive manner possible. This high standard makes it challenging for the law or action to be upheld, making it a significantly valuable protection to the free exercise rights of individuals, churches, and organizations.

For years, this high standard also was used by courts to evaluate neutral laws of general applicability when they happened to burden religious exercise. In other words, when a neutral law incidentally (not intentionally) interfered with an individual or party’s free exercise rights, the government still had to meet the burden of showing the law possessed a compelling government interest and was advanced in the least-restrictive way. Again, this same high standard offered significant protection to the free exercise rights of individuals, churches, and organizations.

However, in 1990, the US Supreme Court issued a controversial decision in a case called Employment Division v. Smith, 494 U.S. 872 (1990). Through this decision, the Court’s majority held that neutral laws—and the application of these laws—did not need to be justified by a compelling government interest and in the least-restrictive way possible whenever religious exercise was burdened. This conclusion made it more likely that a neutral law (or an action related to that law) could remain constitutionally valid, even when it burdened a party’s religious exercise.

The ensuing controversy from this decision prompted federal legislators to act. In 1993, a near-unanimous Congress responded to Smith by passing the Religious Freedom Restoration Act (RFRA), which aimed to restore the compelling government interest/least-restrictive means standard for evaluating neutral laws, and their application, when their effects on religious exercise came into question.

The passage of RFRA, hailed as a victory by religious liberty advocates, stabilized the situation—but only temporarily. Confusion and concern returned in 1997 when the Supreme Court decided a case called City of Boerne v. Flores, 521 U.S. 507 (1997). The Court’s majority concluded Congress overstepped its legislative powers with RFRA when it attempted to apply it both at the federal level and to the local and state levels. The Constitution, the Court’s majority noted, only gives Congress the power to make laws addressing federal laws and activities.

As a result, City of Boerne rendered the federal RFRA moot when it comes to laws and actions at the local and state levels.

Following this decision, some states—but not all—began adopting their own versions of RFRA, each designed to establish a compelling government interest/least-restrictive means standard for evaluating substantial burdens incidentally placed on religious exercise by neutral laws or actions. In some states where a RFRA has not been adopted, a high-level court has issued a decision mirroring the federal RFRA’s standards. In other states, though, a high-level court has decided the standard announced through the 1990 Smith decision should be used. And in about a dozen other states, no law or court decision announces a specific standard to follow, making it difficult to predict whether a church, organization, or individual can prevail in a religious exercise claim against a local or state government.

Further examining “neutral laws”

Also in 1993, a separate Supreme Court decision in a different case—Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)—further defined the standards with which all courts should evaluate attempts by the government to regulate religious exercise. The Court’s decision acknowledged there still can be times when a law or regulation appears on the surface to be neutral, but in actuality still intentionally targets religious activity—and thus still deserves “strict scrutiny.”

In Lukumi, the Court determined the city’s ordinance, though described on the surface to be a neutral law of general applicability, was really designed to halt the animal sacrifice practices of a local church. The Court reached this conclusion by noting the city ordinance exempted other, similar types of conduct carried on by secular entities (e.g., butchers), and by noting the notes and transcripts recorded during the adoption of the ordinance showed city councilmembers intended to specifically address the church’s activities.

Because the ordinance was not truly neutral, and targeted religious activity, the Court said the strict scrutiny standard of review applied. It then deemed the ordinance unconstitutional, finding the ordinance did not advance a compelling government interest in the least-restrictive manner possible.

Where that leaves us—and why all of this matters

For churches, the First Amendment—or their state’s constitutional equivalent—should be the first line of defense when government laws or actions intersect with their activities.

But the presence of the federal RFRA, a state RFRA, or a judicially created RFRA-like protection is important to note. When a RFRA or RFRA-like protection exists, it may offer a church additional protections if it faces a claim arguing it falls under a neutral law of general applicability at the local, state, or federal level and violated it—and the applicability of the First Amendment or state constitution is unclear.

CAUTION. Note that a RFRA defense only emerges when a government agency, commission, or other entity initiates or pursues a claim against a church. A RFRA or judicially created RFRA-like protection is less likely, if at all, to apply to a civil lawsuit filed by a private party.

Church leaders always should consult with qualified local counsel in the event it potentially faces any local, state, or federal actions, or a civil lawsuit by a private party.

A state-by-state look

The 50-State Religious Freedom Laws Report is designed to help individuals and churches understand the protections available to them based upon where they live and operate. Below is a chart, based on information from the resource, detailing which states have a RFRA or a high-level court decision addressing religious exercise. The remainder of the resource provides individual state reports containing additional insights. This additional information is useful for churches and church leaders as they seek to understand how legal protections for their religious exercise operate based upon where they are located.

Of note:

  • With the passage of RFRAs in Iowa, Utah, and Nebraska in 2024, 28 states, plus the federal government, now have RFRAs;
  • Numerous jurisdictions have high-level state court decisions (either at the state supreme court level or a state appellate court level) addressing religious exercise claims. Of those, five (5) used the compelling government interest/least restrictive means standard, while seven (7) appeared to use a standard similar to the US Supreme Court’s Smith decision. One (1)—the District of Columbia—announced a standard in 1987 that leaves uncertainty in light of Smith; and,
  • Ten (10) states offer no RFRA or RFRA-like protections for free exercise claims made in response to state or local government actions incidentally burdening religious exercise.

Matthew Branaugh is an attorney, and the business owner for Church Law & Tax.
Related Topics:

What if Someone in Church Has the Virus?

Understanding the rights of congregants, staff, and volunteers.

As churches reopen across America, they must decide how to handle coronavirus exposure on their campuses. This article will offer guidance for properly responding when church leaders learn that a congregant, an employee, or volunteer might have the virus or been exposed to it.

How churches learn of the virus

Churches may learn about exposure to infection in three ways:

  1. passively, as when an infected person or third party reports it;
  2. constructively, as when a member travels to a hot spot and returns with symptoms; or
  3. actively, by soliciting or deriving the information (e.g., through questionnaires or temperature taking).
  4. Churches should be careful about soliciting information that may wind up getting them into trouble if they mishandle it. While they have no choice but to respond to constructive and actual knowledge of infection, they can decide whether they should actively pursue knowledge of possible infection. The answer may be different for “agents” of the church (e.g., employees and volunteers) compared to “invitees” (e.g., congregants, visitors, and vendors of the church). The more knowledge of infection gained, the more sophisticated the institution must be to make sure the knowledge is well handled.
  5. An obligation to keep employees safe
  6. As agents of the church, employees can confer liability upon the church through their own negligence, such as through the transmission of disease. The US Centers for Disease Control and Prevention (CDC) recommends that if an employee is confirmed to have COVID-19, employers should inform fellow employees in close contact. Even in churches, employees not engaged in “religious services” may be entitled to a safe working environment under the Occupational Safety and Health Act (OSHA) or a similar state law. These same rules should generally apply to volunteers.
  7. Note: Some churches have also elected in favor of workers’ compensation insurance with remedies for workplace hazards.

  8. If an invitee is infected
  9. Churches owe duties to invitees, too. If a church learns that an employee, volunteer, or invitee is infected and fails to warn those in close contact, the church may have liability if early warning could have helped medically or if the individual infects others. Several states recognize a cause of action for negligent communication of a communicable disease in cases involving plaintiffs who were exposed to their detriment by others who negligently failed to tell them or to take reasonable steps to prevent it.
  10. Put simply, knowledge of potential infection confers a duty to investigate and notify, but beware that the due diligence is appropriate and notice should not be too broad or detailed. Churches should provide general information to agents and invitees in close contact with the threat, but should not specifically disclose the identity of any infected individual without written consent. The smaller the group impacted the more difficult it is to maintain anonymity, meaning that the consent of the infected individual becomes more important.
  11. What to share and not share
  12. The information shared should be strictly factual and the minimum information necessary to avoid or mitigate against constitutional privacy and tort claims, such as intrusion or public disclosure of private facts. Some states protect privacy statutorily and constitutionally more so than under federal law. Intrusion is a tort involving the unreasonable and highly offensive intrusion upon the seclusion of another.
  13. A claim for publication of private facts requires proof of (1) the publication (2) of private facts (3) that are offensive and (4) are not of public concern.
  14. A virus could be the type of private fact an individual prefers not to have disclosed. Even the most sophisticated organizations struggle with how and what to communicate and make mistakes when handling sensitive information.
  15. Note: For additional details about privacy issues and what is meant by “intrusion upon seclusion of another,” see the “Invasion of Privacy” section of attorney Richard Hammar’s Pastor, Church & Law.

  16. Reporting infection is imperfect
  17. Some notifications will go too far or be all too obvious about the source of infection. Gossips may force the institution into unanticipated additional disclosures. Due diligence is error prone, leading to over-reporting of false positives and under-reporting of false negatives.
  18. Some who were exposed may be missed and others who were not exposed may be implicated. Some who should be barred from services may attend because they were not warned or found a way in and others who should not be barred will never return.
  19. Swabs, temperature taking, and thermal scanning are imperfect testing means. Reports of infection even by the allegedly infected, much less gossips, are error prone.
  20. Tip. Think twice before soliciting information from invitees that the institution is liable to mishandle.

  21. To report or not to report?
  22. Theologically and morally, churches may think they should do more, but do not neglect to weigh the countervailing privacy and other interests of invitees and the deterrent impact, as well as the uncertain empirical answer to the question of whether doing more really will make a difference.
  23. Tip. Respond to reports of exposure with balanced due diligence and report the minimum necessary information to warn those in close contact, ideally with the approval of the responsible individual.

  24. Consider the threat serious
  25. Take seriously the threat that infected agents pose to those in the pews. Employees fall into this category but so may volunteers who serve in capacities like employees in the church. Due diligence about infection may be more exacting as to employees, subject to discrimination law. The federal Americans with Disabilities Act incorporates a “direct threat” rule, allowing inquiry if an employee poses a direct threat to coworkers and others in the workplace, but state and local disability laws are not always as forgiving.
  26. Focus first on prevention
  27. By taking precautions like deep cleaning and social distancing, many churches will avoid virus exposure in the pews. For those that do not avoid the virus, the best response that considers both agents and invitees will weigh the legal and ethical interests of all and react in a measured fashion. Consulting with legal counsel familiar with religious institutions in the process may also prove advantageous.
Dr. Nathan A. Adams IV is a partner at Holland & Knight. His practice includes representing nonprofit and religious organizations on a variety of matters, including the First Amendment, the ministerial exception, church autonomy, and board and governance issues.

What an Early COVID-19 Supreme Court Decision Meant for Church Gatherings

A Court decision early in the COVID-19 pandemic rejected a California church’s request to restore in-person gatherings sooner than the state allowed.


Update: Since this ruling, the US Supreme Court has made a number of other decisions that began to reshape religious liberty challenges brought against pandemic-related restrictions. For Richard Hammar’s review of all of these decisions, see “The Sacred and the Secular: Assessing US Supreme Court Rulings on Pandemic Restrictions.”

On May 29, 2020, the US Supreme Court delivered an opinion of the case South Bay United Pentecostal Church et al. v. Newsom. The following article explores the background leading up to the opinion, an analysis of the opinion, and what it might mean for churches nationwide.

Background

On March 4, 2020, California Governor Gavin Newsom proclaimed a State of Emergency as a result of the threat posed by COVID-19 (coronavirus). Two weeks later, on March 19, 2020, the governor issued Executive Order N-33-20, which required “all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors.”

Executive Order N-33-20 gave some Californians the right to leave their residences, including clergy who were holding services “through streaming or other technologies that support physical distancing and state public health guidelines.”

Seven weeks later the pandemic had, in the governor’s words, “stabilized.” As a result, on May 7, 2020, the governor published his four-stage “California Reopening Plan,” with each stage increasing those persons permitted to leave their residences:

Stage 1: only “critical infrastructure” was exempted.

Stage 2: “lower risk workplaces” like curbside retail and additional factories making previously nonessential “things like toys, clothing . . . and furniture” would be permitted to reopen. Stage 2 also included entities that would reopen at a later date within that stage, such as schools, childcare, dine-in restaurants, outdoor museums, “destination retail, including shopping malls and swap meets,” and office-based businesses where telework is not possible.

Stage 3: “higher risk workplaces” like churches could reopen, along with bars, movie theaters, hair salons, and “hospitality services.” According to California’s Public Health Officer, Stage 3 is for “things like getting your hair cut, getting your nails done, doing anything that has very close inherent relationships with other people, where the proximity is very close.” The Governor’s Order places temporary numerical restrictions on public gatherings to address this extraordinary health emergency. State guidelines currently limit attendance at places of worship to 25 percent of building capacity or a maximum of 100 attendees.

Stage 4: concerts, conventions, and spectator sports could reopen.

The governor predicted that while Stage 2 would begin in “weeks, not months,” Stage 3 would begin in “months, not weeks.”

On May 8, 2020, a church sued the governor and several other state and local officers (collectively, “the State”) in federal court claiming that the Reopening Plan’s decision to place churches within Stage 3 instead of Stage 2 violated the Free Exercise of Religion Clause of the First Amendment. The church asked the court to grant an injunction requiring the State to once again allow churches to conduct in-person services. The court refused, and a federal appeals court concurred with the lower court’s decision. The church appealed to the United States Supreme Court.

The Supreme Court’s holding

On May 29, 2020, a deeply divided Court (5-4) rejected the church’s request for an injunction. Chief Justice John Roberts sided with the Court’s four liberal Justices (Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan) to form a majority. He authored a concurring opinion, which the other four Justices did not join. Though it has no binding effect, Chief Justice Roberts’s comments offer insights into his reasons for rejecting the church’s injunction. Of note:

Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise [of religion] Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.

The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people.

Justice Kavanaugh’s dissent

Justice Brett Kavanaugh issued a dissenting opinion, which was joined by Justice Neil Gorsuch and Justice Clarence Thomas. (Justice Samuel Alito sided with the church, but did not join the dissenting opinion.) Justice Kavanaugh began his opinion by noting:

I would grant the church’s requested temporary injunction because California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses. Such discrimination violates the First Amendment.

In response to the COVID-19 health crisis, California has now limited attendance at religious worship services to 25% of building capacity or 100 attendees, whichever is lower. The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries. [The church] has applied for temporary injunctive relief from California’s 25% occupancy cap on religious worship services. Importantly, the church is willing to abide by the State’s rules that apply to comparable secular businesses, including the rules regarding social distancing and hygiene. But the church objects to a 25% occupancy cap that is imposed on religious worship services but not imposed on those comparable secular businesses.

Justice Kavanaugh noted that to justify its discriminatory treatment of religious worship services, California must show that its rules are “justified by a compelling governmental interest” and “narrowly tailored to advance that interest.” California “undoubtedly has a compelling interest in combating the spread of COVID-19 and protecting the health of its citizens. But restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom.” What California needs is “a compelling justification for distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap.”

Justice Kavanaugh concluded:

The church and its congregants simply want to be treated equally to comparable secular businesses. California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices. The State cannot “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.”

California has ample options that would allow it to combat the spread of COVID-19 without discriminating against religion. The State could insist that the congregants adhere to social-distancing and other health requirements and leave it at that—just as the Governor has done for comparable secular activities.” Alternatively, the State could impose reasonable occupancy caps across the board. But absent a compelling justification (which the State has not offered), the State may not take a looser approach with, say, supermarkets, restaurants, factories, and offices while imposing stricter requirements on places of worship. . . . In sum, California’s 25% occupancy cap on religious worship services indisputably discriminates against religion, and such discrimination violates the First Amendment. South Bay United Pentecostal Church et al. v. Newsom 590 U.S. ______ (2020)

What this development means for churches

What is the practical relevance of this case to churches? Consider the following points.

First, the Court’s decision means that churches may not be able to look to the courts for assistance when confronted by a state or local law restricting their ability to conduct worship services.

Second, churches can challenge restrictions on attendance that are stricter than those that apply to comparable secular organizations. Comparable organizations would include those that have similar numbers in attendance for similar periods of duration each week, with similar physical interactions. But churches can be subjected to more stringent limitations on attendance if the totality of their interactions with the public are greater than those of other organizations. In this regard, Chief Justice Roberts noted: “The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.”

Third, Chief Justice Roberts stressed that “[our] Constitution principally entrusts the safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad,” and “where those broad limits are not exceeded, they should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”

Fourth, Chief Justice Roberts mentioned the Jacobson case in support of the Court’s decision. In Jacobson, the United States Supreme Court rejected a citizen’s claim that his liberty was invaded “when the State subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination, and that a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.” The Court held:

(I)n every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.

The Court also held “real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.” This case suggests, though not conclusively, that safety and health regulations, such as compulsory vaccinations, supersede religious liberty.

Fifth, church leaders that continue to hold worship services in contravention of state or local restrictions must understand that in doing so they are exposing their congregation to possible risks and liability should one or more persons become infected with the COVID-19 virus. These risks include:

  • Personal liability of church board members if their decision to ignore government mandates and recommendations is deemed to constitute gross negligence. Most states have enacted laws limiting the liability of church officers and directors. The most common type of statute immunizes uncompensated directors and officers from legal liability for their ordinary negligence committed within the scope of their official duties. These statutes generally provide no protection for “willful and wanton” conduct or “gross negligence”—the same standard typically used as a basis for punitive damages.
  • Punitive damages are monetary damages that a jury can award when a defendant’s conduct is grossly negligent or reckless. This does not necessarily mean intentional misconduct. Punitive damages often are associated with reckless conduct or conduct creating a high risk of harm. The United States Supreme Court has noted that the goal of punitive damages is “deterrence and retribution,” that is, “to further a state’s legitimate interests in punishing unlawful conduct and deterring its repetition.” State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408 (2003).
  • It is important for church leaders to understand that reckless inattention to risks can lead to punitive damages, and that such damages ordinarily are not covered by a church’s liability insurance policy. This means that a jury award of punitive damages represents a potentially uninsured risk. As a result, church leaders should understand the basis for punitive damages, and avoid behavior that might be viewed as grossly negligent.

To learn more about how federal and state courts decide religious freedom cases, and to understand which states have state RFRAs or other religious freedom laws, check out the 50-State Religious Freedom Laws Report, a new downloadable resource from Church Law & Tax.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

How to Safely Reopen Your Church and Reduce Legal Liability

Don’t meet until you’ve consulted your local, state, and federal authorities and then follow the strictest guidelines.

The past weeks have been full of uncertainty. Churches have pivoted to continue ministering to their congregations in new ways as the COVID-19 outbreak continues. Church food pantries have blessed communities and become front-line ministries, prayers have been offered through screens and windows, and social media has struggled to temporarily replace in-person church as we know it.

Churches are eager to reopen for in-person worship—an experience that has always had “particularly profound significance to communities and individuals,” as stated in new guidance for reopening from the US Centers for Disease Control and Prevention (CDC).

Services may look different until the COVID-19 threat lessens, but with cities reopening across the country, there are steps your church can take to make a smooth transition back into live, in-person services.

Are you allowed to reopen?

Do not open your church until cleared by your local public health department or governor. You may not be allowed to hold in-person church services for several more weeks. To reduce legal liability, regularly consult your local, state, and federal recommendations and mandates—then follow the most stringent of these.

Government agencies may deliver other important information such as the maximum number of people allowed to meet, which would determine the number of congregants each church service can hold in your facility at a time.

You will also want to consult your insurance company before meeting, and have information ready to give your insurer to prove you are legally allowed to resume services.

It may be prudent to designate someone from your staff to keep track of changes in local health authority policies. This person could make weekly phone calls to the local health department, seeking updates and guidance going forward. The pastoral staff or board can then respond to updates.

You may choose to have a healthcare worker in your congregation be a part of the conversation to reopen or even record or write updates to send out to the congregation. This is a great time to give attention to the heroic medical staff you have in your church family.

Preparation for reopening

You need to a have a plan in place before reopening your church.

The first recommendation for reopening is to restructure service times. Shorten services and offer additional service times to allow for social distancing (six feet between unrelated persons) and to follow your local maximum numbers of people allowed to meet in one place, if your area has such a mandate. Shortened services will avoid putting an undue burden on pastoral staff and volunteers, while still giving the congregation a chance to meet in person.

Consider these steps to shorten the church service:

  • Replace one 90-minute service with two 60-minute services. Depending on the size of your building and congregation, keep service start times far enough apart to allow for social distancing. This may be a full 30 minutes or more from the end of one service to the beginning of the next.
  • Reduce the number of songs in worship: if you have five songs throughout the service, only do three.
  • Shorten the sermon by 10 to 15 minutes, and consider a message with more of a short, devotional feel.
  • Remove “meet and greet” time to limit physical contact and control the possible spread of infection.
  • Replace prayer time, which may once have involved laying on of hands, with the pastor praying corporately for the church body as a whole.

A phased approach

The second recommendation for reopening is a phased approach.

Your first service meeting might be an in-person service where the elderly, immunosuppressed, currently symptomatic, and young children (who may not understand social distancing) are asked to stay home.

A second phase of reopening could include more groups: nursery and children’s church, for example, when that’s cleared by your public health department.

A phased approach will communicate to the congregation that you take their health seriously while desiring to worship together. As you plan to resume meeting, direct the congregation to your church website or social media for up-to-date information.

Screening

Before reopening, have a clear policy on how you intend to screen pastors, volunteers, and your congregation before entering the church. Consider what kind of screening you are able to perform as the congregation arrives, and what can be done in advance through communication.

To the extent you are able, you may want to take the temperature of your pastoral staff and volunteers (considered a risk at 100.4 Fahrenheit or above), and even each member as they enter (if that is feasible). Some churches may choose to purchase a body temperature camera that can detect fevers and have a greeter monitor it as people arrive to church, but this is most likely not an option financially for many congregations.

In addition to taking temperatures, you may also ask symptom-screening questions. Ask people as they arrive if they have recently tested positive for COVID-19 or have had interaction with others who have tested positive. Ask if they have had a new or recent onset of a cough, shortness of breath or difficulty breathing, fever, chills, muscle pain, sore throat, or recent loss of taste or smell. As we learn more about COVID-19, this list of symptoms is updated periodically on the CDC website.

A form with screening questions can be emailed out to your congregation prior to your first in-person service, and posted on the outside of the building as a final reminder before entering. Anyone who answers “yes” to a question should be asked to return home with a recommendation to call their doctor. The form should ask whether the person is currently experiencing, or has experienced within the past seven days, the following types of symptoms (as derived from guidance crafted on May 1, 2020, by The Attending Physician for the US Congress):

  • Fever (temperature greater than or equal to 100.4 F)
  • Chills with shaking or teeth chattering
  • Sore throat
  • Frequent cough
  • Shortness of breath at rest
  • Pain or tightness in your chest
  • Flu-like symptoms
  • Muscle pain (unrelated to exercise)
  • Loss of ability to taste or smell

The form also should ask whether the person lives with someone who is sick at home with bronchitis-like or cold symptoms. It also should ask the person whether he or she, or a member of his or her household, are awaiting COVID-19 test results or have been told to self-isolate.

Whether you communicate with your congregation via email, social media, or a sign on the front door as they arrive, be sure to give clear direction on what you are doing to keep them healthy and safe. Communication may be weekly, or you could opt to send updates simply when your current practice changes based on new information from your local health department. This will help ease the minds of many congregants who may be concerned about infection.

Infection control

As you approach your first in-person service, follow these infection control measures to help your church reopen safely without putting your congregation at undue risk:

  • Janitorial staff should deep-clean the facility before in-person services.
  • As congregants arrive, doors should be propped open to lessen exposure to frequently touched surfaces. You may also opt to keep doors and windows open (weather permitting) to keep fresh air circulating.
  • Door knobs, chairs, and other frequently touched areas should be sanitized between services and as frequently as possible.
  • Bathrooms should be thoroughly cleaned before and after each service.
  • Pastoral staff and volunteers should have a strong presence near the entrance to set the tone for the new normal.
  • If you live where facemasks are mandatory, this will need to be enforced at the entrance to your church. Provide facemasks for those who don’t have one, and plan for what to do if a congregant refuses to wear one. If your area does not require facemasks, create your own policy and stick to it.
  • Welcome everyone to the church at one entrance, maintaining six feet between individuals or households, and direct them immediately to the restrooms where they can wash their hands, or to hand sanitizer stations available for use throughout the facility. Post signs that read, “Please wash your hands before entering the church.”
  • Greet congregants as they arrive with waving and “air hugs” to give a warm welcome while strongly communicating there will be no handshaking or hugs.
  • Do not serve coffee or snacks.

Consider these recommendations for the actual service:

  • Remove the time for “meet-and-greet” or handshaking. Instruct the congregation to refrain from all physical touching (shaking hands, hugging, and even elbow touching, because that is where people cough).
  • Encourage cough etiquette.
  • Instruct congregants to walk to a collection plate or designated place to collect offerings to avoid multiple people touching the same item.
  • Have one-way traffic to avoid crowding, which may be eased with the use of greeters or ushers to direct people.
  • Instruct congregants to walk to the front of the church to receive communion where gloved servers distribute the elements. Each congregant holds out their hand flat to receive the bread into their open hand. The other communion server places an individual communion cup on a table in front of them, and the congregant who received the communion picks up the cup. Alternatively, if individual communion cups are not an option, distributing only the bread would be fitting. You may also consider pre-packaged communion. Again, use one-way traffic with a clear path of how congregants can come to the front and return to their seat.
  • Remove prayer partners or time when congregants and leaders and pastors typically pray in close proximity. Instead, ask congregants with prayer needs to raise their hands and stay seated, with the congregation then praying about the needs represented.
  • Direct the congregation to exit through a different door than the entrance if you are having more than one service. Ensure one-way traffic to avoid crowded areas throughout the service.
  • Be prepared with a protocol for someone who attends and then believes they start to become symptomatic during the service. The best plan is to ask the person politely but firmly to leave the facility immediately.

Setting these expectations immediately upon reopening will help the congregation model the behavior you want in your church.

Social distancing

Some counties are giving maximum capacity guidelines. If you do not have such guidelines, a simple way of determining how many people you should allow into your building upon reopening is your maximum occupancy as ordered by your local fire department.

Some health officials are recommending a 50-percent capacity of what your building is otherwise allowed to hold. This half-full approach should allow churches to reopen while allowing the congregation to socially distance. In the main sanctuary, help people socially distance by removing every other pew or row of chairs. Remember that rows of chairs can still be spaced immediately next to each other, as households can sit next to each other.

The new 50-percent capacity recommendation (or in some areas, even lower percentages) presents a hurdle to welcoming congregations back to church. The possibility of shortening the length of the service means that a greeter can tell people to please wait until the next service, which now is not so long of a wait. Having overflow rooms with a live stream of the service means the congregation is still able to socially distance in separate rooms.

Exiting the church through the lobby can create crowding. Your building may have additional entrances and exits to utilize as people leave, or hallways to better manage the flow of people between services. Try to have one-way traffic, with one entry point that is different than the exit point. This will be streamlined with clear signage directing people where to go. Enlist greeters or ushers to help organize and monitor traffic flow.

Lastly, make certain staff and volunteers contemplate what to do should a medical emergency arise. In our current outbreak, this could include someone in the church who begins having a COVID-19 symptom from the list above that is so severe they cannot be asked to go home, such as shortness of breath. Most likely, the safest course of action is to immediately call 911 and wait for emergency responders to intervene.

Protecting pastors and staff

Here are safety precautions to take as pastors and staff return to the church office:

  • If possible, create one-way, circulatory traffic patterns in a church office layout.
  • Stagger work hours while physically at the office (and perhaps interchanged with work-from-home days).
  • Stagger seating in break room/lunch room (if it exists).
  • Make hand sanitizers available in various places throughout the office areas—and be sure employees know where to find them.
  • Clean workstations regularly. Encourage employees to take responsibility for wiping down their desks and other work surfaces with disinfecting wipes.
  • Increase the cleaning frequency by custodial staff, including restrooms, stairwells/elevators, and trash removal. (For more guidance on workplace cleaning, see the CDC’s guidance.)
  • Keep conducting team meetings using video conferencing.
  • Verify that workstations are spaced far enough apart to maintain occupancy standards with distancing.
  • Limit the number of volunteers/visitors/guests at the office when it is open.
  • Post signs reminding of the importance of regular handwashing, use of hand sanitizers, cough etiquette, and other areas where safe practices need to be encouraged.
  • Consider a Plexiglas shield/barrier for the receptionist.
  • Check the temperature of anyone who enters the office. Or let employees self-monitor by providing a small table that includes a thermometer, a pack of disposable probe covers, and hand sanitizer; employees can take their own temperature then dispose of the cover in a trash can nearby; afterward, they would sanitize their hands.
  • Screen employees’ health before they return to the office. You could use a form similar to the one created for Sunday services, which employees complete and submit electronically each day before coming to work. If employees have any COVID-19 symptoms from the list used for Sunday services, they should be instructed to stay home and asked not to return until they have been symptom-free for three days, or 10 days have passed since symptoms first appeared.
  • Put in place a reporting protocol if symptoms develop. An employee who becomes symptomatic on the job should be sent home immediately. The church also should follow any reporting requirements, whether at the local or state levels, as well as the federal level, including the Occupational Safety and Health Act of 1970 (which churches are subject to).

Holly Hammar Lear is a PhD prepared nurse and public health official. She also serves as a worship leader and her husband is the lead pastor of Resurrection Assembly of God in Iowa City, Iowa.

Advantage Member Exclusive

Will Our Church Get Sued for Reopening?

How church leaders should weigh the potential legal liabilities associated with public gatherings during the pandemic.


Editor’s Note. This article is part of the Advantage Membership. Learn more on how to become an Advantage Member or upgrade your membership.

Should churches reopen?

It was the question weighing on the minds of church leaders nationwide in the spring of 2020, and continued well into 2021. The evolving storyline of the COVID-19 (coronavirus) pandemic, coupled with varying local and state government directives issued to try and slow the virus’s spread, left many congregations feeling uncertain and frustrated.

In several states, directives limited public gatherings to small groups of people—oftentimes 10 or fewer—and forced “nonessential” businesses and organizations, including churches, to remain shuttered. Orders also included “shelter-in-place” restrictions requiring people to remain in their residences unless tending to an essential need, such as a trip for groceries or to see a physician. Some states issued religious exemptions as part of their directives, but many did not.

Cases and deaths attributed to COVID-19 continued to climb throughout late 2020 and early 2021, but as the economic tolls of these measures also mounted, so too did pressures to begin aggressively reopening the country. Numerous political protests in Michigan, Colorado, and elsewhere emerged. A number of religious liberty lawsuits were filed by houses of worship, with results mixed.

States responded to the virus and the public pressures in different ways. Most states already opted to follow “phased” reopening plans, while a handful moved slower.

Against this confusing and ever-changing backdrop, church leaders faced numerous questions as they wrestled with what they should do. Even as the pandemic’s effects lessen heading into the summer of 2021, questions remain. Questions undoubtedly range from congregational demographics to building logistics to staff and volunteer readiness, among others. A Washington Post article from spring of 2020 detailed the tensions many congregations in Maryland and Virginia felt as those respective states began phased reopening efforts (with the former including houses of worship in its phased reopening plans).

Before addressing these questions pertaining to reopening, though, church leaders must first make one crucial assessment: what legal liabilities their church faces if it reopens.

Create an information baseline

While a decision to reopen a church’s doors shouldn’t be based solely on the likelihood of a future lawsuit, the existence of such a possibility looms large. Leaders must seriously weigh the prospects of potential litigation, and other possible regulatory or criminal penalties, and determine how much legal risk they are willing to tolerate. Otherwise, they may unintentionally make their church vulnerable to an adverse court decision or a costly sanction down the road.

Several types of legal matters could arise for churches, ranging from a civil lawsuit alleging the church’s decision to reopen caused an attender’s or volunteer’s injury or death, to an employment-related claim brought by an employee who becomes ill after returning to the office, to fines administered by local law enforcement.

Before sorting out these various possibilities, leaders must first establish a baseline of information about how government and medical officials are handling the public health risks for their area.

Finding and prioritizing the information

Preferably daily, but at least every few days, leaders must verify the recommendations, guidelines, and—most importantly—mandates issued by local, state, and federal authorities, attorney and senior editor Richard R. Hammar told Church Law & Tax.

Local information usually can be found on the town, city, or county’s website, or those of the local public health authority. Likewise for information issued by the state. (Relatedly, this free article from The Wall Street Journal includes an excellent map that tracks state reopening plans and offers regularly updated summaries covering how each state is proceeding.)

In terms of federal guidance, presidential executive orders related to the pandemic are logged by the Federal Register, while the US Centers for Disease Control and Prevention (CDC) on May 14, 2020, released reopening guidelines for both workplaces and faith-based organizations. Although the CDC’s materials are not binding, they nevertheless establish publicly available standards of care that churches should take into account.

The information-gathering process can be challenging when optional guidance—but not mandates—exists. It can be especially challenging when government sources conflict with one another. In general, church leaders should identify the materials most clearly labeled as mandates, orders, or bans and prioritize those first, followed by guidelines or recommendations. If contradictions arise between information sources, particularly with respect to what is or is not legally mandated, church leaders should carefully document the materials they find, consult with qualified local legal counsel and their church’s insurer, and then decide how to proceed.

A church that desires to fully minimize its legal liabilities will want to follow the strictest directives applicable to it, whether at the local, state, or federal level, Hammar said. Beyond directives, the church will want to abide by the most rigorous of any optional guidelines or recommendations applicable to it, which will help demonstrate the church strove to follow the most cautious approaches publicly available.

Not all churches will choose to follow the most conservative path, under a belief that they can tolerate a higher risk for potential legal issues. Or, in some instances, governmental authorities will give optional recommendations, but few, if any, mandates, leaving the decision to reopen—and the ways of doing so—in the church’s hands. For churches finding themselves in either position, they will want to consider these additional points before making a final call:

  • Denominational guidance. Churches affiliated with a denomination will want to reference any guidance or mandates established by regional or national denominational offices and make certain their decision is appropriately aligned.
  • Insurance. Church leaders should consult with their insurer regarding their policy (or policies) to determine what is—and is not—covered in terms of opting to reopen and risking an outbreak in their congregation. Leaders should verify whether any employment-related coverage will apply in the event an employee becomes ill. Lastly, the church should determine with the insurer whether coverages will include the provision of legal representation in the event any type of claim tied to COVID-19 is brought against the church.
  • Workplace practices. Churches that reopen their offices and require pastors and staff members to lead services will have to meet regulatory requirements designed to ensure safe workplaces. Churches must legally comply with the Occupational Safety and Health Act of 1970 (OSHA). OSHA requires employers to provide “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm,” including COVID-19. OSHA also deems COVID-19 to be a required reporting event if an employee becomes ill on the job.

Additionally, state labor safety laws must be accounted for.

Tip. Learn more about OSHA- and CDC-related guidance for COVID-19 in workplaces, as well as other employment law considerations, in this Advantage Member article.

  • Criminal penalties. Violations of government orders or bans can result in numerous penalties that church leaders will want to weigh carefully. As attorneys Theresa Sidebotham and Nicole Hunt noted in March, consequences can include “financial penalties, forced closure, stripping state benefits from the organization, or even jail time for church leaders.”

Could we get sued?

Lastly, leaders must weigh the likelihood of facing a lawsuit should they reopen.

In places where local or state directives currently prohibit public gatherings, a church that still decides to open is likely in the most vulnerable position with respect to a future lawsuit, Hammar noted. The likelihood of such a lawsuit prevailing is not clear, since a plaintiff will have the burden of proving the church’s gathering directly caused the plaintiff to contract COVID-19. If only one or two people became ill after the church met, then it will be harder to convince a jury. Conversely, if dozens of churchgoers become ill, then the odds improve of convincing a jury.

Hammar also said it’s important to note that attorneys who represent plaintiffs likely will pursue a certain type of legal claim known as “negligence per se” in situations involving businesses or churches that choose to reopen even though local or state mandates prohibited them from doing so. Under a “negligence per se” claim, a defendant’s causation of a plaintiff’s injury is automatically assumed if the defendant violated a local, state, or federal mandate in place at the time the injury occurred. If a church decides to meet in person for services and activities, despite directives mandating otherwise, then causation may automatically be assumed for a plaintiff who brings a lawsuit against the church, Hammar said. The ability for the plaintiff to prevail then becomes much easier.

Relatedly, members of Congress debated the creation of an immunity provision throughout 2020 that would have shielded businesses and other entities from civil litigation if they comply with applicable local, state, and federal mandates while reopening during the pandemic. No such federal provision ever emerged. But even if one had, church leaders still must recognize the vital importance of “complying with applicable mandates” in order to attain any benefits provided by such a shield, Hammar said.

Matthew Branaugh is an attorney, and the business owner for Church Law & Tax.

Checklist: Do We Understand the Effects of Our Church’s Political Activity?

Use this checklist to understand the potential effects of your church’s political activity.

When it comes to political activity, churches need to understand their constitutional protections, as well as the Internal Revenue Code’s restrictions for 501(c)(3) tax-exempt organizations. Take the following quiz to test your knowledge. The answer key is at the end of the article.

Download a PDF version of this assessment.

There are two distinct limitations in the tax code. First, churches may not engage in substantial efforts to influence legislation. Second, churches may not participate or intervene in any political campaign, even to an insubstantial degree. The first limitation is referred to as the “lobbying” limitation. The second limitation is referred to as the “campaign” limitation.

The income tax regulations interpreting the limitation on political campaign intervention provide that neither a church nor any other organization can be exempt from federal income taxation if its charter empowers it “directly or indirectly to participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of or in opposition to any candidate for public office.” The regulations further provide that:

The term “candidate for public office” means an individual who offers himself/herself, or is proposed by others, as a contestant for an elective public office, whether national, state, or local. Activities that constitute participation or intervention include, but are not limited to, the publication or distribution of written or printed statements or the making of oral statements on behalf of or in opposition to such a candidate.

Consequences of Church Political Activity

None of the political activities described above are “illegal.” The primary legal consequence of church political activity is that the church’s exemption from federal income taxation may be jeopardized.

Loss of a church’s federal income tax exemption would have several potential penalties, including the following: (1) the church’s net income would be subject to federal income taxation; (2) the church’s net income would be subject to state income taxation (except in those few states not having an income tax); (3) donors no longer could deduct charitable contributions they make to the church; (4) the church would be ineligible to establish or maintain “403(b)” tax-sheltered annuities; (5) possible loss of property tax exemption under state law; (6) possible loss of sales tax exemption under state law; (7) possible loss of exemption from unemployment tax under state and federal law; (8) loss of preferential mailing rates; (9) a minister’s housing allowance might be affected; (10) the significant protections available to a church under the Church Audit Procedures Act may no longer apply; and (11) the exemption of the church from the ban on religious discrimination under various federal and state civil rights laws may be affected.

These consequences should be considered when deciding whether or not to engage in political activities that may jeopardize the church’s tax-exempt status.

Answer Key: (1) F (2) F (3) F (4) F (5) T (6) T

ajax-loader-largecaret-downcloseHamburger Menuicon_amazonApple PodcastsBio Iconicon_cards_grid_caretChild Abuse Reporting Laws by State IconChurchSalary Iconicon_facebookGoogle Podcastsicon_instagramLegal Library IconLegal Library Iconicon_linkedinLock IconMegaphone IconOnline Learning IconPodcast IconRecent Legal Developments IconRecommended Reading IconRSS IconSubmiticon_select-arrowSpotify IconAlaska State MapAlabama State MapArkansas State MapArizona State MapCalifornia State MapColorado State MapConnecticut State MapWashington DC State MapDelaware State MapFederal MapFlorida State MapGeorgia State MapHawaii State MapIowa State MapIdaho State MapIllinois State MapIndiana State MapKansas State MapKentucky State MapLouisiana State MapMassachusetts State MapMaryland State MapMaine State MapMichigan State MapMinnesota State MapMissouri State MapMississippi State MapMontana State MapMulti State MapNorth Carolina State MapNorth Dakota State MapNebraska State MapNew Hampshire State MapNew Jersey State MapNew Mexico IconNevada State MapNew York State MapOhio State MapOklahoma State MapOregon State MapPennsylvania State MapRhode Island State MapSouth Carolina State MapSouth Dakota State MapTennessee State MapTexas State MapUtah State MapVirginia State MapVermont State MapWashington State MapWisconsin State MapWest Virginia State MapWyoming State IconShopping Cart IconTax Calendar Iconicon_twitteryoutubepauseplay
caret-downclosefacebook-squarehamburgerinstagram-squarelinkedin-squarepauseplaytwitter-square