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:
- passively, as when an infected person or third party reports it;
- constructively, as when a member travels to a hot spot and returns with symptoms; or
- actively, by soliciting or deriving the information (e.g., through questionnaires or temperature taking).
- 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.
- An obligation to keep employees safe
- 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.
Note: Some churches have also elected in favor of workers’ compensation insurance with remedies for workplace hazards.
- If an invitee is infected
- 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.
- 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.
- What to share and not share
- 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.
- 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.
- 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.
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.
- Reporting infection is imperfect
- 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.
- 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.
- Swabs, temperature taking, and thermal scanning are imperfect testing means. Reports of infection even by the allegedly infected, much less gossips, are error prone.
Tip. Think twice before soliciting information from invitees that the institution is liable to mishandle.
- To report or not to report?
- 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.
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.
- Consider the threat serious
- 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.
- Focus first on prevention
- 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.
