Article summary. The music performed in some churches is of sufficient intensity and duration to cause permanent hearing loss in both musicians and members of the congregation. This article will review the effects of loud music, explore ways to reduce this hazard, and address a church’s possible liability for ignoring the problem.
The music performed in some churches during worship services and special events can become loud and intense. When electric guitars and drums are involved, the noise can become deafening. Consider a few examples.
• Example. A church uses a small band during worship services consisting of electric guitars, drums, and five singers. Some church members complain that the music is too loud.
• Example. A church uses a small band during worship services. A church member brings an audiometer to a worship service and measures peaks of 105 decibels on the front row with a sustained reading of 95 decibels. Is this level of intensity harmful to the hearing of persons sitting in the front of the church?
• Example. A church conducts youth services one night each week. These services include a prolonged period of singing, led by a worship band using electric guitars and drums. The noise is so loud that some of the youth experience ringing in their ears for hours after each service.
• Example. A church has a small orchestra that frequently performs during worship services. The orchestra includes several percussion and brass instruments.
• Example. A church uses a small band during worship services. One of the band members is the church’s music minister. After being in the band for four years, the music minister begins to notice a permanent hearing loss. She wonders if this is a possible workers compensation claim.
Is it possible for musicians and church members to suffer permanent hearing loss during worship services in which loud music is performed? If so, at what level of intensity does permanent damage occur, and what steps can a church take to limit or eliminate the damage? Do churches face potential legal liability for failing to address this issue? These questions are all addressed in this feature article.
The Bible contains many references to music, and several of these refer to loud music. Consider a few examples.
And all the people gave a great shout of praise to the Lord, because the foundation of the house of the Lord was laid. But many of the older priests and Levites and family heads, who had seen the former temple, wept aloud when they saw the foundation of this temple being laid, while many others shouted for joy. No one could distinguish the sound of the shouts of joy from the sound of weeping, because the people made so much noise. And the sound was heard far away. Ezra 3:11-13
Sing to him a new song; play skillfully, and shout for joy. Psalm 33:3
Clap your hands, all you nations; shout to God with cries of joy. Psalm 47:1
Shout with joy to God, all the earth! Sing the glory of his name; make his praise glorious! Psalm 66:1-2
My lips will shout for joy when I sing praise to you. Psalm 71:23
Come, let us sing for joy to the Lord; let us shout aloud to the Rock of our salvation. Let us come before him with thanksgiving and extol him with music and song. For the Lord is the great God. Psalm 95:1-2
Shout for joy to the Lord, all the earth, burst into jubilant song with music; make music to the Lord with the harp, with the harp and the sound of singing, with trumpets and the blast of the ram’s horn—shout for joy before the Lord, the King. Let the sea resound, and everything in it, the world, and all who live in it. Let the rivers clap their hands, let the mountains sing together for joy; let them sing before the Lord, for he comes to judge the earth. He will judge the world in righteousness and the peoples with equity. Psalm 98:4
Shout aloud and sing for joy, people of Zion, for great is the Holy One of Israel among you. Isaiah 12:6
Shout for joy, O heavens; rejoice, O earth; burst into song, O mountains! For the Lord comforts his people and will have compassion on his afflicted ones. Isaiah 49:13
Shout it aloud, do not hold back. Raise your voice like a trumpet. Isaiah 58:1
This is what the Lord says: “Sing with joy for Jacob; shout for the foremost of the nations. Make your praises heard …. Jeremiah 31:7
Sing, O Daughter of Zion; shout aloud, O Israel!Be glad and rejoice with all your heart, O Daughter of Jerusalem! The Lord has taken away your punishment …. Zephaniah 3:14-15
Several other passages refer to God’s presence with references to loud noise. For example, Isaiah 29:6 proclaims, “The Lord Almighty will come with thunder and earthquake and great noise, with windstorm and tempest and flames of a devouring fire.”
Such passages demonstrate that sacred music is an integral and energetic part of religious worship. This connection has been recognized by several courts. Consider the following description of sacred music by a federal appeals court in a recent case involving a church’s liability for terminating a music director. It represents one of the most stirring descriptions of the pivotal role of music in the ministry of a church:
The music ministry and teaching positions at issue are ministerial because the positions are important to the spiritual and pastoral mission of the church. The functions of the positions are bound up in the selection, presentation, and teaching of music, which is an integral part of [the church’s] worship and belief. The [first amendment’s free exercise of religion clause] therefore bars consideration of [this case]. To hold otherwise would require us to say that music is substantially devoid of spiritual significance in the life of the church. Such a view cannot stand in light of the role of religious music in worship and the record in this case. At the heart of this case is the undeniable fact that music is a vital means of expressing and celebrating those beliefs which a religious community holds most sacred. Music is an integral part of many different religious traditions. It serves a unique function in worship by virtue of its capacity to uplift the spirit and manifest the relationship between the individual or congregation and the Almighty. Indeed, the church has presented ample undisputed evidence affirming the centrality of sacred music to the [Christian faith] and the importance of music ministry to the faith community …. Thus, inasmuch as [the music director’s] duties involve the expression of the church’s musical tradition, it is a fallacy to denominate them as merely secular. We refuse to demote music below other liturgical forms or to sever it from its spiritual moorings. We cannot say, for example, that the reading of scripture or the reciting of prayers is any more integral to religious worship than the singing of hymns or the intonation of chants. Whether spoken or sung, psalms lift eyes unto the hills. It is not for us to place the oratorios of Handel, the cantatas of Bach, or the simplest of hymns beneath the reading of the sacred texts from which they draw …. Nor can we privilege modes of religious expression that draw principally from the rational faculties, such as preaching or the teaching of theology, over those which summon the more lyrical elements of the human spirit. Indeed [as the Supreme Court once observed] “the inspirational appeal of religion in the guises of music, architecture, and painting is often stronger than in forthright sermon.” The efforts of a music minister or teacher can thus influence the spiritual and pastoral mission of the church as much as one who would lead the congregation in prayer, preach from the pulpit, or teach theology in school. Employment Opportunity Commission v. The Roman Catholic Diocese of Raleigh, 213 F. 3d 795 (4th Cir. 2000)
Two problems arise when sacred music is too loud: (1) The music may cause permanent hearing loss in members of the congregation; and (2) the church may be exposed to liability. Each of these concerns is addressed below.
Can music performed during worship services cause permanent hearing loss? The answer is yes. The question is what level of intensity, and duration, is required for hearing loss to occur. Fortunately, much research has been devoted to hearing loss, and much is known about the level and duration of noise that is associated with permanent hearing loss. To illustrate, the National Institute on Deafness and Other Communication Disorders of the National Institutes of Health, and OSHA (the Occupational Safety and Health Administration), have done extensive research into occupational noise, and have provided the following information:
- Hearing is a series of events in which the ear converts sound waves into electrical signals that are sent to the brain and interpreted as sound. The ear has three main parts: the outer, middle, and inner ear. Sound waves enter through the outer ear and reach the middle ear where they cause the eardrum to vibrate. The vibrations are transmitted through three tiny bones in the middle ear, called the ossicles. These three bones are named the malleus, incus, and stapes (and are also known as the hammer, anvil, and stirrup). The eardrum and ossicles amplify the vibrations and carry them to the inner ear. The stirrup transmits the amplified vibrations through the oval window and into the fluid that fills the inner ear. The vibrations move through fluid in the snail-shaped hearing part of the inner ear (cochlea) that contains the hair cells. The fluid in the cochlea moves the top portion of the hair cells, called the hair bundle, which initiates the changes that lead to the production of nerve impulses. These nerve impulses are carried to the brain, where they are interpreted as sound. Different sounds move the hair bundles in different ways, thus allowing the brain to distinguish one sound from another, such as vowels from consonants.
- Every day we experience sound in our environment, but when an individual is exposed to harmful sounds (sounds that are too loud or loud sounds over a long time) sensitive structures of the inner ear can be damaged, causing noise-induced hearing loss.
- Sound radiates into space from a source uniformly in all directions. The sound pressure produced by the source is the same in every direction at equal distances from the point source. The sound pressure level decreases 6 dB (decibels) for each time the distance from the point source is doubled. This is a common way of expressing the “inverse-square law” in acoustics. This reduction in the intensity of sound over distance is called “sound attenuation.”
• Example. If a point source produces a sound pressure level of 90 dB at a distance of 1 meter, the sound pressure level at 2 meters is 84 dB, at 4 meters is 78 dB, and so forth.
• Example.An unshielded drum set used by a church’s worship team emits 120 dB at its source. At 2 meters, the decibel level drops to 114. At 4 meters it drops to 108. The front row of the church is 4 meters way, so persons sitting in this row would experience a decibel level of 108 dB. At 8 meters the noise level of the drums drops to 102 dB. At 16 meters it drops to 96 dB. The last row of the church is 16 meters from the drums, and so persons sitting in this row experience a noise level of 96 decibels from the drum set alone, not including amplified voices or guitars.
- More than 30 million Americans are exposed to hazardous sound levels on a regular basis. Individuals of all ages, including children, adolescents, young adults, and older people, can develop noise-induced hearing loss. Exposure occurs in the workplace, in recreational settings, and at home.
- Of the 28 million Americans who have some degree of hearing loss, about one-third can attribute their hearing loss, at least in part, to noise. Nearly 80% of those affected have irreversible and permanent hearing damage. In addition, some 6 million people also suffer from tinnitus (ringing in the ears) to the extent of requiring medical attention.
- 15 of every 1,000 persons under age 18 have some type of hearing impairment, as do 415 of every 1,000 Americans over age 75.
- “The statistics are an objective measure of the problem. But the impact of hearing loss on the individual far exceeds what we can put down in numbers,” says Derek Dunn, National Institute of Occupational Safety and Health deputy director of biomedical and behavioral science. He points out that one of the major consequences of hearing loss is social isolation from friends and family as a result of the reduced ability to understand speech. “As Helen Keller once remarked, losing her sight cut her off from things. But losing her hearing cut her off from people,” said Dunn.
• Key point. When noise is too loud, or music is played too loudly, it begins to kill the nerve endings in the inner ear. This can cause permanent and irreversible damage to our hearing (one in 10 Americans has a hearing loss that affects their ability to understand normal speech). As the exposure time to loud noise or music increases, more and more nerve endings are destroyed. As the number of nerve endings decreases, so does a person’s hearing. To quantify this, continued exposure to noise above 85 decibels [dB] (about the level of city traffic), over time, will cause damage to hearing. Personal stereos with headphones have been measured up to 112 dB, with rock concerts between 110-120 dB. Music levels of certain orchestral instruments can reach in excess of 126 dB. A new car stereo can blast at levels above 140 dB. Studies show that 37 percent of rock musicians and 52 percent of classical musicians have a measurable hearing loss. There is no way to restore life to dead nerve endings, so the damage is permanent.
• Key point. Several studies demonstrate that noise-induced hearing loss is a common problem among musicians, with classical musicians experiencing hearing loss about as often as rock musicians.
• Key point. Recent studies indicate that a significant percentage of children and teenagers have suffered permanent hearing loss. One of the most likely contributing factors is loud music (both live and recorded).
- Noise-induced hearing loss can be caused by a one-time exposure to loud sound as well as by repeated exposure to sounds at various loudness levels over an extended period of time. The loudness of sound is measured in units called decibels. For example, normal conversation is approximately 60 decibels, the humming of a refrigerator is 40 decibels, and city traffic noise can be 80 decibels. Sounds of less than 80 decibels, even after long exposure, are unlikely to cause hearing loss.
- Exposure to harmful sounds causes damage to the sensitive hair cells of the inner ear as well as the hearing nerve. These structures can be injured by two kinds of noise: loud impulse noise, such as an explosion, or loud continuous noise, such as that generated in a woodworking shop.
- Impulse sound can result in immediate hearing loss that may be permanent. The structures of the inner ear may be severely damaged. This kind of hearing loss may be accompanied by tinnitus, a ringing, buzzing, or roaring in the ears or head which may subside over time. Hearing loss and tinnitus may be experienced in one or both ears, and tinnitus may continue constantly or occasionally throughout a lifetime.
- Continuous exposure to loud noise also can damage the structure of the hair cells, resulting in hearing loss and tinnitus. Exposure to impulse and continuous noise may cause only a temporary hearing loss. If the hearing recovers, the temporary hearing loss is called a temporary threshold shift. The temporary threshold shift largely disappears 16 to 48 hours after exposure to loud noise.
- The symptoms of noise-induced hearing loss increase gradually over a period of continuous exposure. Sounds may become distorted or muffled, and it may be difficult for the person to understand speech. The individual may not be aware of the loss, but it can be detected with a hearing test.
- The incidence of noise-induced hearing loss can be reduced or eliminated through the successful application of engineering controls and hearing conservation programs.
- Although noise-induced hearing loss is one of the most common occupational illnesses, it is often ignored because there are no visible effects, it usually develops over a long period of time, and, except in very rare cases, there is no pain. What does occur is a progressive loss of communication, socialization, and responsiveness to the environment.
- It is true that most people’s hearing gets worse as they get older. But for the average person, aging does not cause impaired hearing before at least the age of 60. People who are not exposed to noise and are otherwise healthy, keep their hearing for many years. People who are exposed to noise and do not protect their hearing begin to lose their hearing at an early age. For example, by age 25 some musicians have “50-year old” ears.
- If you have to raise your voice to talk to someone who is an arm’s length away, then the noise is likely hazardous. And, if your ears are ringing or sounds seem dull or flat after leaving a noisy place, then you probably were exposed to hazardous noise.
Table 1: Loudness Comparison Chart
Note: Decibel levels vary greatly depending on several factors. This table presents decibel levels that likely would be experienced at the source of the following sounds.
- Noise level (dB)Common soundsEffect
|rock music peakboom carsshotgun firingrock concertstereos, IPods, Walkmen (loud volume)symphony orchestra peaksymphony orchestratimpani rolltromboneFrench hornpiano (fortissimo)violincellotelephone dial tonenormal conversation||pain begins (125 dB)regular exposure of more than one minute risks permanent hearing loss (110-125 dB)no more than 15 minutes unprotected exposure recommended (90-100dB)OSHA monitoring requirements begin for covered employers (90 dB)|
how loud is too loud?
Permanent hearing loss is a function of both loudness and duration. Louder noises affect hearing over shorter periods of time. The American Conference of Governmental Industrial Hygienists makes the following recommendations for how long a worker can be exposed to a given level of noise without hearing protection. The following noise levels are given in decibels and multiplied by the “A weighting” scale used by the American National Standards Institute to determine the time of unprotected ear exposure before hearing is affected:
Table 2: American National Standards Institute Noise Standards
|85 dB(A) – 8 hours
88 dB(A) – 4 hours
91 dB(A) – 2 hours
94 dB(A) – 1 hour
97 dB(A) – 30 minutes
100 dB(A) – 15 minutes
103 dB(A) – 7.5 minutes
106 dB(A) – 3.75 minutes
The Occupational Safety and Health Administration (OSHA) has developed similar standards. According to OSHA regulations, when employees are subjected to sound exceeding the levels listed in the following table, their employer must implement “engineering and administrative” controls to reduce the sound to permissible exposure levels. If such steps fail to reduce sound levels within the levels specified in the table, then the employer must provide “personal protective equipment” to affected employees to reduce sound levels within the levels of the table.
Table 3: OSHA Permissible Noise Exposures
- duration per day (hours)sound level (dB)
.25 or less
The application of OSHA standards to churches is addressed below.
legal liability: court cases
A few courts have directly addressed the question of liability for hearing impairment suffered by persons who are exposed to loud music. Summarized below are the major cases.
• Example. A 34-year-old woman (Tammy) attended a bar three to four times a week over the course of two years. On each of these occasions, loud music was being played. Upon leaving the bar, Tammy would always have ringing in her ears, but after sleeping through the night, the ringing would disappear. On one occasion the music was so loud that Tammy felt a sudden sharp pain in her left ear. She immediately left the bar with her ear ringing. When the ringing persisted for over a week, she sought medical attention. An employee at the bar stated that he would periodically check the noise level, that the decibel level was usually 95 to 105, and that “just about all clubs play it that way just because that is what people go for.” A physician tested Tammy’s hearing, and found a hearing loss in her left ear consistent with noise exposure, and tinnitus. He testified that repeated incidents of loud music over a period of time was a contributing cause of her tinnitus. Tammy later sued the bar in a state court in Florida, claiming that it was responsible for her hearing loss because of the loud music that it allowed on its premises. A trial court dismissed Tammy’s claim on the basis of assumption of risk. That is, Tammy fully appreciated and assumed the risk of exposure to loud music by patronizing the bar. A state appeals court reversed this ruling, and ordered the case to proceed to trial. It concluded that Tammy’s voluntary exposure to a known risk was simply one fact to consider in deciding whether the bar was legally responsible for her injury. Bootz v. Crown Leisure Corporation, 569 So.2d 842 (Fla. App. 1990).
• Example. A 51-year-old attorney (Jeff) attended a rock concert featuring John Fogerty, a member of the former Creedence Clearwater Revival band. Fogerty was accompanied by a back-up band consisting of guitar, bass, and drums. The seating was “open,” and Jeff sat in the front row of the mezzanine. When the concert began, Jeff found the noise level intolerable and during the first or the second song he retreated to an area of the building outside the auditorium but still within hearing range of the music. He made an unavailing attempt or two to inform auditorium personnel that he thought the music was too loud. Some of Jeff’s friends attended the concert with him, and found the music so loud that they stuffed tissue or fingers into their ears during the concert. Jeff claimed that he suffered permanent hearing loss as a result of his concert, and he sued the concert hall and promoters for damages. Nobody knows just how loud the music was on the night of the concert. An auditorium employee estimated that the noise level of the first song was 106 decibels. An audiologist testified at the trial that exposure to this level of sound for a half hour could be unsafe. Another witness testified that “4 minutes would be the maximum permissible exposure to noise at a level of 105 decibels.” A New York court concluded that the case had to be dismissed for two reasons. First, there was no “standard of care” by which a jury could determine that the concert hall or promoters breached a duty owed to the audience. Without knowing what is “too loud,” and without knowing how loud the concert actually was, a jury “would have to engage in double speculation to conclude that the music was unreasonably loud.” Second, the doctrine of assumption of risk prevented Jeff from recovering any damages. According to this doctrine, persons cannot sue for damages as a result of injuries sustained when they voluntarily expose themselves to a known risk of harm. The court observed that “by engaging in a recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the [activity] and flow from such participation.” It concluded, “That loud music can cause hearing impairment is perfectly obvious and commonly appreciated …. [A]n objective, reasonable, 51-year-old lawyer, particularly one who has experienced ringing in his ears after prior concerts, would know that loud music can cause hearing impairment …. Jeff was in a position to hear exactly how loud the music was … [yet] he elected to stay for the [concert], complete with guitars, bass, and drums, obviously aware that the volume would only rise. Loud rock & roll concerts (and other events, such as stadium athletic contests, at which rock & roll is blared) have been a ubiquitous fixture on the American landscape for decades now. Tens, if not hundreds, of millions of people have had their senses (aural and otherwise) assaulted at such events …. The principle applicable to the social compact governing the volume at rock & roll concerts is caveat emptor [buyer beware] …. Litigation is not an appropriate means to impose an unlegislated noise code upon performers who want to perform a certain way, and their legions of screaming fans, who want them to do just that …. Nobody is forced to attend rock & roll concerts. Jeff could have left the ballroom in less time than the four (or thirty) minutes he claims it would take for the alleged decibel level of the concert to cause hearing loss.”
The first of these cases suggests that churches face some risk of liability for music that is so loud that it causes permanent hearing loss. The second case suggests that the legal doctrine of “assumption of risk” may be raised as a defense to liability for hearing loss caused by excessive noise.
• Key point. Minors are a special case. Some courts have ruled that the assumption of risk defense is more narrow when applied to minors. And, recent surveys reveal that most adolescents do not see loud music as a problem.
legal liability: OSHA violations
Can excessive noise in worship services expose a church to liability under the Occupational Safety and Health Act?
OSHA noise regulations
The Occupational Safety and Health Act specifies that “each employer shall furnish to each of his employees a place of employment free from recognized hazards that are causing or are likely to cause … serious physical harm.” The Occupational Safety and Health Administration (OSHA) has enacted thousands of regulations pertaining to workplace safety, including some that address excessive noise. In particular, OSHA regulations impose the following two requirements on employers with regard to excessive noise in the workplace:
(1) employer-provided protection against hearing loss
OSHA regulations specify that “when employees are subjected to sound exceeding those listed in [Table 3, above] feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of [Table 3] personal protective equipment shall be provided and used to reduce sound levels within the levels of the Table.”
administrative and engineering controls
What are administrative and engineering controls? OSHA regulations specify that any noise control should “minimize sources of noise; prevent the propagation, amplification, and reverberation of noise; and protect workers from excessive noise.” Engineering controls may include “anti-vibration machine mountings, acoustical enclosures, and component replacement.” Administrative practices may include “shift rotation or exposure limitation.”
personal protective equipment
If administrative or engineering controls do not lower employee exposure to workplace noise to acceptable levels, employees must wear appropriate hearing protection. It is important to understand that hearing protectors reduce only the amount of noise that gets through to the ears. The amount of this reduction is referred to as attenuation, which differs according to the type of hearing protection used and how well it fits.
Hearing protectors worn by employees must reduce an employee’s noise exposure to within the acceptable limits noted in Table 3. Manufacturers of hearing protection devices must display the device’s noise reduction rating (NRR) on the product packaging. Some types of hearing protection include:
- Single-use earplugs are made of waxed cotton, foam, silicone rubber or fiberglass wool. They are self-forming and, when properly inserted, they work as well as most molded earplugs.
- Pre-formed or molded earplugs must be individually fitted by a professional and can be disposable or reusable. Reusable plugs should be cleaned after each use.
- Earmuffs require a perfect seal around the ear. Glasses, facial hair, long hair or facial movements such as chewing may reduce the protective value of earmuffs.
When daily noise exposure is composed of two or more periods of noise exposure of different levels, their combined effect are considered, rather than the individual effect of each.
(2) implement a noise conservation program
OSHA regulations specify that a covered employer “must administer a continuing, effective hearing conservation program whenever employee noise exposures are at or above an eight hour time-weighted average (TWA) of 85 dB …. This is referred to as the action level.” Minimum requirements of a hearing conservation program include a written program, continuous noise monitoring, audiometric testing of affected employees, hearing protection devices, employee training, and recordkeeping.
application of OSHA regulations to churches
Are churches subject to the Occupational Safety and Health Act and regulations? In some cases they are. The Act defines covered employers to include any organization “engaged in a business affecting commerce that has employees.” If an employer is engaged in a business that affects commerce it will be subject to OSHA even it if has only one employee. In enacting the Act, Congress “intended to exercise the full extent of the authority granted” to it by the Constitution’s “commerce clause.” Chao v. Occupational Safety and Health Review Commission, 401 F.3d 355 (5th Cir. 2005).
OSHA regulations clearly specify that nonprofit organizations are subject to OSHA regulations:
The basic purpose of the Act is to improve working environments in the sense that they impair, or could impair, the lives and health of employees. Therefore, certain economic tests such as whether the employer’s business is operated for the purpose of making a profit or has other economic ends, may not properly be used as tests for coverage of an employer’s activity under the Act. To permit such economic tests to serve as criteria for excluding certain employers, such as nonprofit and charitable organizations which employ one or more employees, would result in thousands of employees being left outside the protections of the Act in disregard of the clear mandate of Congress to assure “every working man and woman in the Nation safe and healthful working conditions.” Therefore, any charitable or nonprofit organization which employs one or more employees is covered under the Act and is required to comply with its provisions and the regulations issued thereunder.
However, OSHA regulations treat churches as a special case. Here is what the regulations say:
Churches or religious organizations, like charitable and nonprofit organizations, are considered employers under the Act where they employ one or more persons in secular activities. As a matter of enforcement policy, the performance of, or participation in, religious services (as distinguished from secular or proprietary activities whether for charitable or religion-related purposes) will be regarded as not constituting employment under the Act. Any person, while performing religious services or participating in them in any degree is not regarded as an employer or employee under the Act, notwithstanding the fact that such person may be regarded as an employer or employee for other purposes—for example, giving or receiving remuneration in connection with the performance of religious services.
This language is very important. It demonstrates that OSHA considers churches to be subject to the provisions of the Act and regulations, but for policy reasons no “enforcement” action will be taken against a church that violates OSHA regulations in the course of “the performance of, or participation in religious services” since “any person, while performing religious services or participating in them in any degree is not regarded as an employer or employee under the Act, notwithstanding the fact that such person may be regarded as an employer or employee for other purposes.”
The regulations list the following examples of religious organizations that would be covered employers under the law:
- a private hospital owned or operated by a religious organization
- a private school or orphanage owned or operated by a religious organization
- commercial establishments of religious organizations engaged in producing or selling products such as alcoholic beverages, bakery goods, religious goods, etc.
- administrative, executive, and other office personnel employed by religious organizations [29 CFR 1975.4(c)]
On the other hand, the regulations list the following examples of religious organizations that would not be covered employers under the law:
- churches with respect to clergymen while performing or participating in religious services
- churches with respect to other participants in religious services such as choir masters, organists, other musicians, choir members, ushers, and the like [29 CFR 1975.4(c)]
The special treatment of churches and church employees under the OSHA regulations helps to explain why no court has addressed the application of the Act to churches. The fact is that most churches would be considered “employers” under the Act because they are engaged in interstate commerce, but, OSHA has chosen not to assert jurisdiction over churches except in special circumstances.
The partial exemption of churches from OSHA coverage is illustrated by the following examples:
• Example. A church uses a small band during worship services. A church member brings an audiometer to a worship service and measures peaks of 105 decibels on the front row with a sustained reading of 95 decibels. The church’s music minister (a full-time employee) is exposed for several minutes during each worship service to decibel levels exceeding those listed in Table 3 (above). Must the church implement “administrative or engineering controls” to reduce the noise to levels to acceptable levels (not more than those listed in Table 3), or provide “personal protective equipment” to its music minister? The OSHA regulations specify that “as a matter of enforcement policy, the performance of, or participation in, religious services will be regarded as not constituting employment under the Act. Any person, while performing religious services or participating in them in any degree is not regarded as an employer or employee under the Act.”
• Example. A church uses a small orchestra during worship services twice each week. The orchestra practices for two hours each week in addition to performing in worship services. Members of the orchestra are exposed to decibel levels exceeding the permissible levels specified by OSHA (Table 3). Is the church liable for exceeding these limits? The OSHA regulations specify that “as a matter of enforcement policy, the performance of, or participation in, religious services will be regarded as not constituting employment under the Act. Any person, while performing religious services or participating in them in any degree is not regarded as an employer or employee under the Act.” In addition, OSHA regulations list “participants in religious services such as choir masters, organists, other musicians, choir members, ushers, and the like” as an example of persons who are outside of the scope of OSHA coverage.
• Example. Helen is a church organist. She plays the organ several times each week at worship services, choir rehearsals, funerals, weddings, and other special functions. She is frequently exposed to decibel levels exceeding the permissible levels specified by OSHA (Table 3). Is the church liable for exceeding these limits? The OSHA regulations specify that “as a matter of enforcement policy, the performance of, or participation in, religious services will be regarded as not constituting employment under the Act. Any person, while performing religious services or participating in them in any degree is not regarded as an employer or employee under the Act.” In addition, OSHA regulations list “participants in religious services such as choir masters, organists, other musicians, choir members, ushers, and the like” as an example of persons who are outside of the scope of OSHA coverage.
• Example. Jon is a sound technician employed by a church. His job is to make sure that sound levels are adequate during all church services and functions. He is required to be present at all rehearsals as well as services and special functions. He is often exposed to music that exceeds the permissible levels specified by OSHA (Table 3). Is the church liable for exceeding these limits? The OSHA regulations specify that “as a matter of enforcement policy, the performance of, or participation in, religious services will be regarded as not constituting employment under the Act. Any person, while performing religious services or participating in them in any degree is not regarded as an employer or employee under the Act.” In addition, OSHA regulations list “participants in religious services such as choir masters, organists, other musicians, choir members, ushers, and the like” as an example of persons who are outside of the scope of OSHA coverage. Does this exception apply to a sound technician? Does his work constitute participation in a religious service “in any degree”? Neither OSHA, nor any court, has addressed this issue. It remains a possibility.
• Example. Pastor Ted has heard that churches are exempt from OSHA. Is this correct? The answer is no. The Occupational Safety and Health Act specifies that “each employer shall furnish to each of his employees a place of employment free from recognized hazards that are causing or are likely to cause … serious physical harm.” It defines covered employers to include any organization “engaged in a business affecting commerce that has employees.” If an employer is engaged in a business that affects commerce it will be subject to OSHA even it if has only one employee. In enacting the Act, Congress “intended to exercise the full extent of the authority granted” to it by the Constitution’s “commerce clause.” This language is so broad that there is no doubt that most churches are subject to OSHA. However, as a matter of discretion, OSHA regulations specify that “as a matter of enforcement policy” the “performance of, or participation in, religious services will be regarded as not constituting employment under the Act.” As a result, “any person, while performing religious services or participating in them in any degree is not regarded as an employer or employee under the Act” even though that person is regarded as an employee for other purposes (such as tax reporting). However, OSHA regulations list the following examples of religious organizations that would be covered employers under the law: (1) a private hospital owned or operated by a religious organization; (2) a private school or orphanage owned or operated by a religious organization; (3) commercial establishments of religious organizations engaged in producing or selling products such as alcoholic beverages, bakery goods, or religious goods; (4) administrative, executive, and other office personnel employed by religious organizations. In summary, churches are subject to OSHA with regard to any of these situations.
• Key point. OSHA violations can result in substantial penalties. These penalties depend on a number of factors. To illustrate, willful or repeated violations of OSHA requirements may result in a penalty of up to $70,000 for each violation (with a minimum penalty of $5,000 in the case of willful violations). Employers who fail to correct a citation issued by OSHA may be assessed a penalty of up to $7,000 for each day that that the violation continues. The Occupational Safety and Health Act specifies that OSHA has authority “to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.”
the “ministerial exception”
The courts consistently apply a “ministerial exception” to state and federal employment laws based on the assumption that resolution of employment disputes between churches and ministers would entangle the courts in internal church matters in violation of the first amendment. As one court aptly noted in a case involving a dismissed minister’s claim of wrongful termination, “This case involves the fundamental question of who will preach from the pulpit of a church …. The bare statement of the question should make obvious the lack of jurisdiction of a civil court. The answer to that question must come from the church.” A federal appeals court has applied the ministerial exception to a minister’s claim for overtime pay under the federal Fair Labor Standards Act. Shaliehsabou v. Hebrew Home of Greater Washington, 363 F.3d 299 (4th Cir. 2004) (addressed fully in the March-April 2005 issue of this newsletter)
Such rulings suggest that ministers may not be able to pursue monetary damages against their employing church for OSHA violations. This issue has never been addressed by a court. It is possible that the ministerial exception would not be applied in an OSHA case, since it pertains to compliance with federal safety regulations that likely would involve no interpretation of church doctrine. Even if the ministerial exception did apply to OSHA claims, it would not bar claims by lay employees.
A covered employer’s legal obligation under the Act is to provide employees with a safe place to work. OSHA regulations prescribe several rules to assist employers in complying with this basic requirement. In effect, the regulations could be viewed as reasonable “standards of care.” As a result, they might be used by church employees and members to establish a standard of care applicable to churches even with respect to “exempt” positions.
legal liability: workers compensation
All states have enacted workers compensation laws to provide benefits to employees who are injured or become ill in the course of their employment. Benefits generally are financed through insurance premiums paid by employers. Churches are subject to workers compensation laws in most states.
Some courts have addressed the issue of an employee’s eligibility for workers compensation benefits based on hearing loss caused by excessive noise at work. Consider the following example.
• Example. Tom was employed by the City of Seattle as a sound technician at the Seattle Center for 15 years. As a sound technician he set up and operated sound equipment for different programs at the Opera House, the Coliseum, the Arena and the Exhibition Hall. He worked at approximately 500 events including opera, ballet, and symphony rehearsals and concerts, and rock concerts. He monitored and adjusted the sound during performances and frequently had to increase output volumes so the music could be heard over screaming fans. He did not use hearing protection and he and his wife noticed a gradual hearing loss. Tom filed a workers compensation claim for benefits based on hearing loss caused by occupational noise exposure. A state agency ordered the city to pay permanent partial disability benefits. Spyridis v. Department of Labor, 2004 WL 188304 (Wash. App. 2004).
other forms of liability associated with excessive noise
Permanent hearing loss is not the only risk associated with excessive noise levels. Consider the following true story.
On March 28, 2000, at about 6:40 a.m. (sunrise was at 6:33 a.m.), a freight train traveling 51 miles per hour struck the passenger side of a school bus at a railroad grade crossing near Conasauga, Tennessee. The accident occurred as the school bus was crossing the tracks at a speed of approximately 15 miles per hour. During the accident the driver and three children were ejected. Two ejected passengers received serious injuries and one was fatally injured. The driver, who had been wearing a lap and shoulder belt that broke during the crash sequence, received minor injuries. Of the four passengers who remained inside the bus, two were fatally injured, one sustained serious injuries, and one, who was restrained by a lap belt, received minor injuries. The two train crewmembers were not injured. Locomotive event recorder data from the train involved in the accident indicate that the train horn was activated for about 3 seconds when the train was 952 feet from the crossing and then continuously for 9 seconds (a minimum of 574 feet) before the collision.
The bus driver had the radio on, and a speaker was positioned above her head. Additionally, the two panels above the driver’s head were covered with sound attenuation material. With the door closed and the radio on (the conditions at the time of the accident), audibility testing revealed that the sound of the horn was only 4 decibels greater than the ambient noise when the train was 1,268 feet from the crossing; the horn was barely detectable to a volunteer bus driver. To be identified, a sound must be 3 to 9 decibels above the threshold of detection; 3 to reach the alerting level, it must be at least 10 decibels above the ambient noise level. Since the sound level increases by about 6 decibels when the distance is halved, at 574 feet (the point where the horn was sounded continuously), the sound of the horn would have been about 11 decibels above the threshold of ambient noise.
During the accident, with the radio on and the door and window closed, the audio portion of the videotape did not pick up the sound of the horn over the ambient noise. During testing, with the radio off and the door open, even at 1,268 feet, the sound level of the horn was 25 decibels above that of the ambient noise, and a driver would probably be able to detect the sound and be alerted to the approaching train.
After investigating this tragic accident, the National Transportation Safety Board (NTSB) concluded that the driver did not stop, had the radio on, and the door closed, and as a result had difficulty detecting the train horn and was probably unaware of the presence of the train. As a result of its investigation, the NTSB recommended that school bus manufacturers discontinue the installation in school buses of radio speakers used for music or entertainment that are near the driver’s head.
reducing the harmful effects of excessive noise
Many churches continue to expose members and employees to excessive noise that exceeds the permissible decibel levels prescribed by OSHA. As noted above, the risk of liability in such cases may be low, due to the exemption of church worship services from OSHA coverage and the doctrine of assumption of risk. However, the risk cannot entirely be dismissed, since:
- Some courts have construed the assumption of risk defense narrowly, especially in the context of minors.
- OSHA does not exempt all church employees or activities.
- Churches may be subject to workers compensation claims for employees’ hearing loss.
- Church members, employees, and volunteers may be able to sue for hearing loss based on the principle of negligence, using OSHA regulations as a “standard of care” that was violated by their church.
As a result, church leaders should recognize that excessive noise may expose a church to potential liability. But avoidance of liability is just one reason to address excessive noise. Another reason is the ethical responsibility to protect members of the congregation from potentially damaging levels of noise during worship services. Once church leaders understand that the noise level in worship services may be causing permanent hearing loss to members of the congregation, many will want to do something about it apart from any consideration of legal liability.
There are simple and very effective ways for churches to address the problem of excessive noise during worship services. Here are some of them, adapted from recommendations from the National Institute for Occupational Safety and Health (NIOSH) and OSHA:
1. Noise measurement. Obtain an audiometer and begin measuring noise levels during worship services at various places in the sanctuary. This can be done during rehearsals or during live services or performances. Audiometers will demonstrate if noise levels are excessive. Monitoring of sound levels with an audiometer should be continuous.
Tip. Audiometers are inexpensive. Very accurate models are available from electronics stores, or on the Internet, for under $50.
2. Engineering and administrative controls. OSHA regulations specify that “when employees are subjected to sound exceeding those listed in [Table 3, above] feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of [Table 3] personal protective equipment shall be provided and used to reduce sound levels within the levels of the Table.”
What are administrative and engineering controls? OSHA regulations specify that any noise control should “minimize sources of noise; prevent the propagation, amplification, and reverberation of noise; and protect workers from excessive noise.” Engineering controls may include “anti-vibration machine mountings, acoustical enclosures, and component replacement.” Administrative practices may include “shift rotation or exposure limitation.”
• Example. A church worship team uses electric instruments and a drum set. The drum set is placed in an acoustical enclosure to protect other musicians from dangerous noise levels. This is an example of an engineering control to reduce noise exposure.
• Example. A church’s sound technician continually monitors noise levels using an audiometer. The technician has a master control that allows him to reduce noise levels when they approach a high decibel level. This is an example of an engineering control.
• Key point. In most cases, churches can achieve adequate noise attenuation through engineering and administrative controls.
3. Personal protective equipment. If administrative or engineering controls do not lower noise exposure to acceptable levels, or until such time as they are implemented, hearing protection devices are the only way to prevent hazardous levels of noise from damaging the ear. It is important to understand that hearing protectors reduce only the amount of noise that gets through to the ears. The amount of this reduction is referred to as attenuation, which differs according to the type of hearing protection used and how well it fits.
Hearing protectors should reduce noise exposure to within the acceptable limits noted in Table 3. Manufacturers of hearing protection devices must display the device’s noise reduction rating (NRR) on the product packaging. Some types of hearing protection include:
- Earmuffs require a perfect seal around the ear.
• Key point. If earplugs are used, there are some important guidelines that should be followed: (1) Be sure adequate instructions are provided on the proper use of these devices. (2) Are replacements readily available? (3) Do users understand the appropriate hygiene requirements? (4) Select earplugs that have a high NRR rating. (5) Earplugs can be purchased in bulk at nominal cost from a number of vendors. Check the Internet for several options.
Tip. The NIOSH website contains a tool for evaluating the effectiveness of several brands of earplugs and other forms of hearing protectors. Here is the link, http://www2a.cdc.gov/hp-devices/hp_srchpg01.asp.
Note that the effectiveness of hearing protection devices will depend on proper use. Earplugs may fall well below their NRR rating if improperly inserted.
Churches that cannot reduce sound levels to non-injurious levels should consider the following actions. First, periodically inform the congregation in the weekly bulletin or newsletter that sound levels may reach injurious levels during worship services that could cause permanent hearing loss. Second, periodically inform members (and musicians) that earplugs will be available at specified distribution points, such as an information booth, usher station, or from any usher.
• Key point. These procedures not only will inform and protect members and musicians against permanent hearing loss, but they also will reduce the church’s potential liability for cases of hearing loss caused by excessive noise levels during worship services.
4. Hearing tests. Consider offering annual hearing tests to musicians, employees, and others who may be exposed to excessive noise during church services or other functions.
© Copyright 2005 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m86 m58 c0605