Does your church have cribs in the nursery? Do you operate a child care center that has cribs? If you answered “yes” to either question, there are new federal regulations that apply to you—and, unfamiliarity with them could lead to substantial penalties and civil lawsuits that may implicate not only your church, but your church board as well. This article will review the new regulations and their financial and legal implications for church practices.
Background
Congress enacted the Consumer Product Safety Improvement Act (CPSIA) in 2008, which required the Consumer Product Safety Commission to establish enhanced safety standards for infant and toddler products. The CPSC responded by voting unanimously to approve the first revisions to the crib safety regulations in nearly 40 years.
The new regulations not only mandate new safety standards in the manufacture and sale of cribs, but they also impose requirements on most child care centers. The regulations become effective in two stages.
Stage 1:
June 28, 2011—sales or other transfers of cribs
Beginning on June 28, 2011, all cribs sold in the United States must meet the following requirements in the new regulations:
- Traditional drop-side cribs cannot be made or sold; immobilizers and repair kits cannot be used to rehabilitate a noncompliant crib. The regulations prohibit any person to whom the CPSIA applies to “manufacture, sell, contract to sell or resell, lease, sublet, offer, provide for use, or otherwise place in the stream of commerce a crib that is not in compliance” with the new standards. The CPSIA states that it applies to any person that: (A) “manufactures, distributes in commerce, or contracts to sell cribs”; (B) holds itself out as having knowledge or skill peculiar to cribs, including child care facilities and family child care homes; and (C) owns or operates a place of public accommodation.
- Wood slats must be made of stronger wood to prevent breakage.
- Crib hardware must have anti-loosening devices to keep it from coming loose or falling off.
- Mattress supports must be more durable.
- Safety testing must be more rigorous.
Does this regulation apply to churches? Yes, if they sell or otherwise dispose of noncompliant cribs on or after June 28, 2011. This is so even if the church does not meet the definitions of a “child care facility” or “place of public accommodation,” since the regulations apply to any entity that sells, offers, provides for use, or otherwise places a crib in the stream of commerce regardless of its status as a child care facility or place of public accommodation.
If the sale or donation of noncompliant cribs violates the new regulations and exposes a church to civil liability, how should a church dispose of noncompliant cribs? The CPSC answers this question as follows:
All child care facilities, family child care homes, and places of public accommodation … must prepare to replace their current cribs with new, compliant cribs before December 28, 2012 [and] should not resell, donate or give away a crib that does not meet the new crib standards …. [They should] dispose of older, noncompliant cribs in a manner that the cribs cannot be reassembled and used. Noncompliant cribs should not be resold through online auction sites or donated to local thrift stores. CPSC recommends disassembling the crib before discarding it.
If your church purchased or obtained a crib prior to the June 28, 2011, effective date and you are unsure if it meets the new federal standards, CPSC recommends that you verify that the crib meets the standards by asking for proof. Ask the manufacturer, retailer, or distributor to show a Certificate of Compliance. The document must:
- Describe the product.
- Describe the product.
- Give name, full mailing address, and telephone number for importer or domestic manufacturer.
- Give name, full mailing address, email address, and telephone number for the records keeper and location of testing lab.
- Give date and location of manufacture and testing.
Also, note that the crib must have a label attached with the date of manufacture, and this will help in determining if it was manufactured on or after June 28, 2011 (the date the new crib safety regulations took effect).
Stage 2:
December 28, 2012—use of noncompliant cribs
Another key requirement of the new regulations takes effect on December 28, 2012. On and after that date, any crib that is used by a child care facility must meet the new and improved federal safety standards. The law does not define the term “child care facility,” but the CPSC (which will enforce the new standards) has clarified that “we consider a child care facility to mean a nonresidential setting that provides child care services (which could include early learning opportunities) for a fee.”
The CPSC website addresses the application of this definition to churches in two places:
First definition
The CPSIA does not provide any exclusion for churches. If a church operates a child care facility, the cribs that it provides must comply with CPSC’s crib standards. Given the language in the CPSIA, we consider a child care facility to be one that provides services for a fee. If volunteers take care of children during a church service without pay, we do not consider that arrangement to be a child care facility, and cribs used under such an arrangement would not be subject to CPSC’s crib standards. The New Crib Standard: Questions and Answers
Second definition
A child care facility or center provides child care services … for a fee … and is usually, although not always, licensed by the state …. If a church owns or operates a child care facility and pays a person or people to care for children, that child care center is covered by the CPSC’s crib rule. However, if the child care arrangement at a church involves parents (or others) volunteering to care for children during church service (and no one is paid to care for the children), this arrangement is not covered by the crib rule. Crib Information Center
Both of these definitions stress that a church child care facility subject to the new crib regulations is one that provides child care services for a fee. In addition, both definitions clarify that a church nursery that operates during worship services, that does not charge a fee for its services, and that does not compensate workers, is not a child care facility subject to the new regulations.
The risks of noncompliance
Churches that continue to use noncompliant cribs after December 28, 2012, face an array of risks, including the following. Note that all of these risks, except the first one ($100,000 fine), may apply even if a church is not subject to the regulations because it does not pay persons to care for children.
- Substantial penalties under the Consumer Product Safety Act of up to $100,000 per noncompliant crib.
- Compensatory damages in a civil lawsuit in the event that a child is killed or injured as a result of a defective and noncompliant crib. The argument would most likely?be that the church was negligent in using cribs that the government has determined to be unsafe, even if it is not covered by the crib rules.
- Punitive damages in a civil lawsuit in the event that a child is killed or injured as a result of a defective and noncompliant crib. These damages can be substantial, and they are ?not covered by a church’s general liability insurance policy since such coverage generally is deemed to be contrary to public policy.
- Personal liability of members of the church’s governing board who approved the use of noncompliant cribs in the event that a child is killed or injured as a result of a defective and noncompliant crib, since the immunity from liability under state and federal law for uncompensated board members of nonprofit corporations does not extend to gross negligence.
- A church’s general liability insurance policy may contain an exclusion barring coverage for claims resulting from deaths and injuries caused by a defective product.
It is important for church leaders to understand that all of these risks, except the first one, apply equally to churches that do not offer child care for a fee and therefore are not “child care facilities” subject to the new crib regulations. As a result, church leaders should not permit noncompliant cribs to be used in a church nursery or child care facility regardless of whether the church satisfies the definition of a child care facility.
What neither definition addresses directly is the common scenario in which a church operates a nursery during worship services without charging parents a fee, but that compensates its nursery workers. Does a church’s decision to compensate its nursery workers transform its nursery into a child care facility fully subject to the new crib regulations? Unfortunately, the answer is unclear.
Unless the CPSC or the courts provide definitive guidance to the contrary, church leaders should play it safe and regard such a nursery as a covered child care facility given the many adverse consequences that may result from an erroneous assumption that the church is exempt.
KEY POINT. Churches that continue to use noncompliant cribs, both before and after December 28, 2012, not only jeopardize the health and life of infants, but also expose themselves, and potentially members of the church board, to substantial liability.
Example. A church has a child care center with ten cribs that it operates each weekday. Parents pay a fee to enroll their children in the center, and the center is staffed by compensated employees. This facility meets both of the CPSC’s definitions of a “child care facility,” and so it must begin using compliant cribs no later than December 28, 2012.
Example. A church does not offer child care services to parents for a fee but does have four drop side cribs in its nursery that are used during worship services and are staffed by uncompensated, volunteer workers. Since no fee is charged for nursery services, and workers are not compensated, the nursery would not be a “child care facility” under either of the CPSC definitions (quoted above) and cribs used under such an arrangement would not be subject to CPSC’s crib standards. However, the church is not off the hook. Its continued use of noncompliant cribs exposes it to a risk of liability should a child be injured or killed since the continued use of noncompliant cribs, despite the CPSC’s widely publicized warnings, could be viewed as negligence. In addition, if a jury determines that the church’s use of noncompliant cribs constitutes gross negligence, this could result in punitive damages (not covered by the church’s general liability insurance policy) and may expose members of the church’s governing board to personal liability since state and federal laws immunizing uncompensated board members of nonprofit corporations from personal liability do not apply to directors’ gross negligence.
Example. Same facts as the previous example, except that the church compensates the nursery workers. Whether a church nursery that operates during worship services without charging a fee, but that compensates its workers, is a child care facility subject to the new crib regulations is a question that is not unequivocally answered by the definitions quoted above. Church leaders should understand that this ambiguity may be resolved in favor of church coverage, and so a church described in this example may be subject to penalties for noncompliance. Regardless of the answer, the church remains subject to a risk of civil liability for continuing to use noncompliant cribs if a child is killed or injured as a result of a crib defect.?In addition, if a jury determines that the church’s use of noncompliant cribs constitutes gross negligence, this could result in punitive damages (not covered by the church’s general liability insurance policy) and may expose members of the church’s governing board to personal liability since state and federal laws immunizing uncompensated board members of nonprofit corporations from personal liability do not apply to directors’ gross negligence.
KEY POINT. Before and after the regulations prohibiting child care facilities from using noncompliant cribs take effect on December 28, 2012, church staff likely will be asked questions by parents regarding the church’s compliance with the new regulations. Obviously, most members won’t be satisfied if they are told the church has decided to continue its?use of noncompliant cribs because it does not offer child care for a fee and therefore does not meet the definition of a “child care facility” subject to the new regulations. The same is true for parents visiting the church. Will they be attracted to the church, or repelled, by the church’s conscious and intentional decision to expose infants to risk as a means of saving the cost of voluntarily replacing noncompliant cribs?
This article first appeared in Church Finance Today, September 2012.
