The coronavirus (COVID-19) pandemic is adversely affecting faith-based institutions across the world. Mass gatherings of any kind are now temporarily circumscribed or prohibited in the United States and elsewhere. This guidance addresses some of faith-based institutions' most frequently asked questions.

1. Do Religious Institutions Have a First Amendment Right to Remain Open Despite Orders to Close?

In 1990, the U.S. Supreme Court ruled that neutral, generally applicable laws are ordinarily constitutional even if they infringe upon religious exercise. Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872 (1990). Most executive orders temporarily limiting or precluding gatherings are these kinds of limitations invoking the state's broad police power to protect the welfare, health and safety of citizens that do not have as their purpose limiting religious exercise but only as their incidental effect. To the extent an executive order targeted religious institutions for disparate unfavorable treatment, the order may offend the Free Exercise Clause. Many emergency orders contain exceptions for various events such as funerals and weddings. Read the order carefully to assess its scope.

2. Do Faith-Based Institutions Have a Duty to Inquire of and Exclude Employees Exposed to COVID-19?

The Centers for Disease Control and Prevention (CDC) recommends that employers separate sick employees from other employees. The failure to inquire of employees about exposure to COVID-19 could give rise to legal actions for negligence and other claims against faith-based institutions. Workers' compensation insurance is elective in some states for some religious institutions. Workers' compensation claims are possible for respiratory diseases to the extent the plaintiff can establish that his or her occupation presents a particular hazard of the disease occurring so as to distinguish other occupations. Religious institutions without workers' compensation insurance may be able to turn to general liability coverage to insure against this risk or they will have to self-insure.

The Occupational Safety and Health Act (OSH Act) exempts religious organizations which employ only individuals who perform "religious services," but not those that employ one or more persons in "secular" activities. 29 C.F.R. § 1975.4(c)(1). Specifically, the Occupational Safety and Health Administration (OSHA) takes the view that the Act protects secretaries and maintenance workers of large churches and religious institutions; employees of a private school or orphanage owned or operated by a religious organization, and commercial establishments of religious organizations. 29 C.F.R. § 1975.4(c)(2). For covered employees, OSHA requires employers with 10 or more employees (part-time or full-time) to record COVID-19 illnesses among the workforce when the virus is contracted in the workplace.

The General Duty Clause of the OSH Act, 29 U.S.C. § 654(a)(1), and many corollary state laws, require covered employers to furnish to each worker "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." Accordingly, OSHA advises that covered employers implement policies that will result in the "prompt identification and isolation of potentially infectious individuals." Faith-based institutions should consider following this advice whether or not they are subject to OSHA, and consider excluding or sending home an employee who is symptomatic or returning from travel from high-risk locations specified by the CDC.

The CDC recommends that if an employee is confirmed to have COVID-19, employers should inform co-workers immediately so that they can seek appropriate medical screening or care. Employers should provide general information to employees if an employee is infected, but should not specifically disclose the identity of any infected employee, except, as discussed below, with persons who can prevent or lessen a serious and imminent threat to the health or safety of the public. See 45 C.F.R. § 164.510(a); cf. 45 C.F.R. § 164.508. The personal information disclosed should be the minimum necessary to accomplish the purpose.

During a pandemic, exceptions to the Americans with Disabilities Act's (ADA) restrictions on employer health inquiries allow employers to inquire about an employee's potential infection with the disease and travel from high-risk locations.¹ The ADA's "direct threat" rule allows inquiries because an employee infected with COVID-19 will pose a direct health and safety threat to co-workers and others in the workplace. 29 C.F.R. § 1630.2(r). State and local laws may also incorporate a direct threat exemption or other exemptions or defenses such as the bona fide occupational qualification defense. In contrast, an employee who is ill with something else such as the seasonal influenza does not have a disability under the ADA. Some state and local laws also define disability in a manner that rules out communicable diseases. Consult these laws carefully.

Asking an employee who has been absent from work for a medical reason for the absence is not a violation of the ADA. Nor is requiring an employee to provide a doctor's note certifying fitness to return to work. Employers may ask employees if they believe they have come into contact with someone who has been exposed to the virus, but may not ask employees whether they have a medical condition that could make them especially vulnerable to the virus. Furthermore, due to the Genetic Information Nondiscrimination Act (GINA) and corollary state laws, employers are restricted from inquiring about family members or their recent potential exposure. 42 U.S.C. §199gg-91(d)(16)(A); 29 C.F.R. § 1635.3(c) (protected genetic information includes "[t]he manifestation of disease or disorder in family members of the individual (family medical history)").

3. Do Religious Institutions Have a Duty to Warn Parishioners, Students or Others Served About COVID-19 Exposure, and Must They Exclude At-Risk Individuals?

The common law may impose a duty on religious institutions that become aware that a parishioner, student or another served has a fever to report any threat of exposure to others served in close contact. 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 take reasonable steps to prevent it. The report to parishioners should be general in nature without revealing personally identifying information about the source of the threat to avoid privacy-related concerns and claims.

Religious institutions may also have a duty to disinfect and remediate the premises when they become aware of any exposure threat and, in an abundance of caution, more generally. The CDC has published cleaning and disinfection guidance and called for frequent and vigorous application. The CDC also recommends coordination with state and local health officials over exposure and threats of exposure.

Religious institutions may also have a duty to take reasonable steps to exclude infected or exposed individuals by, for example, publishing precautions against individuals entering or participating who have been exposed to or are infected with COVID-19, or have traveled from high-risk areas.  Some religious institutions are considering more aggressive steps. Consider first whether your religious institution is a "place of public accommodation." Most are exempt under federal law, but not all types are under state and local law. Places of public accommodation may not discriminate against individuals on the basis of disability in the full and equal enjoyment of services and facilities. 42 U.S.C. s. 12182. Therefore, before denying benefits to individuals, religious institutions should consider whether they are places of public accommodation and, if so, whether any exception permits disparate treatment under the circumstances.

The "direct threat" exception in federal law allows public accommodations to exclude an individual if that individual poses a direct threat to the health or safety of others that cannot be mitigated by appropriate modifications in the public accommodation's policies or procedures, or by the provision of auxiliary aids. 28 C.F.R. s. 36.208(a). State and municipal public accommodation laws may incorporate a direct threat exception or another exception or defense, meaning you should consult state and local law before denying benefits to individuals except under direct emergency order.

4. What Happens When Faith-Based Institutions or Vendors Cannot Perform Contracts Due to the Virus?

The coronavirus is certain to test jurisprudence pertaining to force majeure clauses, impossibility of performance or commercial impracticability, and, relatedly, so-called "acts of God." State law will govern these issues. Force majeure clauses are typical in commercial contracts. The ultimate resolution of their applicability will depend closely on the terms of the contract and the specific circumstances concerning performance. Such clauses usually address "causes beyond the control" of the contracting party. Disputes about whether the clause applies in a given case will commonly focus on what is causing one party to fail to perform a contractual obligation. Those clauses that specifically reference epidemics or pandemics will have the greatest force.

Impossibility of performance or commercial impracticability is a defense to contract performance. Under this doctrine, a party is discharged from performing a contractual obligation when the obligation is impossible to perform due to unforeseeable circumstances. Mere inconvenience or increased cost does not usually meet the standard. An "act of God" may be the reason for the impossibility of performance. "Acts of God" are also commonly listed in force majeure clauses. They have been described as acts or occurrences "so extraordinary and unprecedented that human foresight could not foresee or guard against" them and for which negligence or want of diligence, judgment or skill played no part. See Fla. Power Corp. v. City of Tallahassee, 154 Fla. 638, 646, 18 So. 2d 671 (1944); Cain v. Atlantic Coast Line R. Co., 74 S.Ct. 89, 54 S.E. 244, 247 (1906).

5. Must Religious Institutions Provide Paid Sick Leave to Employees?

On March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act, H.R. 6201 (FFCRA) to address the impact of the COVID-19 national health emergency. Among other provisions, the FFCRA provides up to two weeks of paid sick leave (PSL Leave) and up to 12 weeks of paid public emergency health leave (PEH Leave) to help those dealing with medical issues relating to COVID-19, as well as to care for children affected by school and child care closures. Employees must have worked for their employer at least 30 calendar days to be eligible for PEH Leave, but there is no minimum for PSL Leave. Various caps or limitations apply to both. FFCRA will be effective no later than April 2, 2020.

The Act applies to nearly all employers with fewer than 500 employees, including persons acting on behalf of an employer and successors in interest. There is no exemption for religious institutions, although the U.S. Department of Labor is authorized to make exemptions for employers of less than 50 individuals. There is a corresponding dollar-for-dollar tax credit available to employers to offset some of the associated costs, limited both daily and in the aggregate. For example, under the Emergency Paid Sick (EPS) Leave Act, the credit is capped at $511 per day, or $200 if for employees who take leave to care for others or for childcare. The credit is refundable.

FFCRA is supplemental, meaning it does not displace the ordinary Family and Medical Leave Act (FMLA) or state and local laws, and does not change their scope of applicability. PEH Leave is leave taken because of a "qualifying need related to a public health emergency." EPS Leave is required in six situations when an employee is absent because he or she: 1) is subject to a federal, state, or local quarantine or isolation order related to COVID-19; 2) has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; 3) is experiencing symptoms of COVID-19 and seeking a medical diagnosis; 4) is caring for an individual who a) is subject to a federal, state, or local quarantine or isolation order related to COVID-19, or b) has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; 5) is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such child is unavailable, due to COVID-19 precautions; or 6) is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

There may be cases in which the First Amendment affects statutory coverage of an otherwise covered religious institution. For example, the ministerial exception doctrine may apply, precluding FMLA-related claims by "ministers," but this law is unsettled and you should consult with counsel before relying upon any such exemption.

Next Steps

Faith-based institutions should exercise caution and continue to monitor official guidance.

Notes

¹ See "Pandemic Preparedness in the Workplace and the Americans With Disabilities Act," U.S. Equal Employment Opportunity Commission (EEOC).