alt=Kelsey DallasSALT LAKE CITY — As churches across the country resume in-person meetings, faith leaders have more to fear than people in their congregations getting sick.
Houses of worship could soon face reopening-related lawsuits. Some hope Congress will act quickly to mitigate this risk.
“It’s important to ensure churches are not going to be sued by somebody who ... is upset that of the 50 different regulations or guidelines, a place of worship only followed 49,” said Michael Berry, general counsel for First Liberty Institute, a Texas-based firm that specializes in religious liberty law.
Republicans in the Senate are expected to consider church liability as they draft their next COVID-19 relief bill. Key leaders have already said discouraging coronavirus-related lawsuits against businesses, hospitals, schools and houses of worship is the right thing to do.
“Every day the needle is moving in a positive direction, but I’m worried that without some protection for these workers, these businesses, these churches and food banks, we’re going to reverse course, or stop them dead in their tracks,” said Sen. John Cornyn, R-Texas, during a May 18 speech on the Senate floor. He’s reportedly working closely with Senate Majority Leader Mitch McConnell on liability legislation.
However, Republican-led efforts to offer legal immunity won’t pass without a fight. Democrats, workers’ rights advocates and some experts on liability law argue protections for reopened businesses, churches and other organizations would encourage wrongdoing.
“Immunity could punish reasonable businesses by giving the unreasonable and irresponsible ones an advantage in the marketplace,” said David Vladeck, a law professor at Georgetown University, during a May 12 Senate Judiciary Committee hearing on the issue.
But similar pushback hasn’t stopped other lawmakers from creating new liability protections. Around 15 states now offer some level of legal immunity to health care providers treating COVID-19 patients, and Utah recently passed broad protections for businesses and other types of organizations, including churches.
“As businesses, houses of worship, recreation activities and other venues begin to reopen ... this new law gives these places confidence that frivolous claims will not be brought against them related to COVID-19,” said Utah state Sen. Kirk A. Cullimore, R-Draper, who sponsored the legislation, in an email to the Deseret News.
Congress should make it clear that responsible pastors and community leaders belong in their buildings helping others, not in court, Berry said.
“I’ve yet to meet any religious leader who does not care at a deeply personal level about keeping people safe and healthy,” he said.
Reasons not to reopen
In liability lawsuits, intentions matter. Those accused of causing property damage or personal injury through carelessness must prove they took reasonable steps to reduce risk.
“There is no liability so long as the entity acts reasonably,” Vladeck said.
Typically, churches and other public facing organizations can point to construction records or maintenance plans to show they’ve kept up with safety recommendations.
But, in lawsuits tied to an unprecedented pandemic, reasonableness is harder to define.
Religious organizations and others “continue to face a variety of complicated and sometimes even contradictory advice,” Berry said.
Most officials agree that churches need to require at least 6 feet of space between family groups and prevent people from touching items like hymnals and offering plates.
But it’s less clear how houses of worship should manage rituals like communion or what pastors should do when people get too close while walking in.
“It’s nearly impossible to follow every single guideline,” Berry said.
It’s also impossible to be 100% confident that no new cases of COVID-19 will appear, he added. Even churches that regularly sanitize their building can’t completely eliminate the threat of a coronavirus outbreak.
“You can do everything right and somebody can still get sick,” Berry said.
For these reasons, churches and other organizations across the country have been slow to reopen, according to a letter from nearly 300 faith groups and pastors recently submitted to Congress.
“The mere threat of litigation may cause many religious organizations to remain closed far beyond what is necessary,” it said.
Leaders of secular organizations, including convenience stores and schools, offered similar arguments during the Senate Judiciary Committee’s May 12 hearing on liability protections.
If lawmakers want life to return to normal in the near future, they need to reduce the threat of lawsuits, they said.
Reducing risks
Those who support new liability protections aren’t advocating for a world where coronavirus-related litigation doesn’t exist, Berry said. They just want to reduce the number of unwarranted claims.
“The goal would be to deter people to seek out opportunities to sue,” he said.
However, by offering legal immunity to many organizations, Congress might unintentionally discourage necessary lawsuits, according to opponents of proposed liability protections.
“There’s no incentive for (businesses) to have a safe workplace if (Congress) takes away any type of liability on them,” said Kim Cordova, who leads a food workers union, to The Wall Street Journal earlier this month.
Cordova and others believe liability laws already provide strong protections to responsible businesses. Most organizations accused of enabling a COVID-19 outbreak would have no problem defending themselves, despite the unusual circumstances created by the ongoing pandemic, Vladeck said.
“Causation ... will be devilishly difficult, if not impossible, to make in most cases,” he said.
Those calling for new liability protections agree that angry customers, workers or worshippers would have a very difficult time making their case. But even a near guarantee of legal victory is not enough to calm property owners’ fears, Cullimore said.
“A claim by itself, even without legal merit, can be very costly and detrimental,” he said.
Amid an economic downturn and after weeks of service disruptions, few religious organizations can afford such an expensive distractions.
“The cost of defending against (coronavirus-related lawsuits) would have devastating consequences,” reads the letter to Congress from faith leaders.
Waiting on Congress
Although McConnell, Cornyn and other Republican leaders seem open to passing liability protections, it’s unlikely that Congress will take action on the issue before early June.
In the meantime, churches and other organizations will have to make difficult reopening decisions without the comfort of knowing they’re sheltered from unjustified legal claims.
If lawmakers and health officials want to offer help in the short term, they can do so by clarifying coronavirus-related guidance, Vladeck said.
It becomes even easier for responsible organizations to defend against liability claims when they can cite clear regulations to prove they’ve acted in an appropriate way.
“Providing employers and businesses the guidance they need to safely reopen will do more to forestall litigation and to open up our economy than anything else the federal government can do, short of finding a vaccine,” Vladeck said during his testimony before the Senate Judiciary Committee.
Since that hearing, the Centers for Disease Control and Prevention released basic reopening recommendations for schools, childcare centers and several other types of organizations. It did not release guidelines for churches due to concerns over government interference into religious practices, according to The Associated Press.
However, faith-based organizations looking for reopening advice are not without resources. Several religious institutions and insurers have released detailed instructions for how to resume in-person worship services while keeping people safe.
For example, Church Mutual, the largest insurer of churches in the country, has instructed houses of worship to focus on “two practices and four key numbers,” in the days ahead, said Guy Russ, the company’s assistant vice president for risk control.
The six factors include distance between worshippers, the time required for disinfectants to take effect and how long it takes for COVID-19 symptoms to appear.
“You should look at every aspect of the services an organization is providing through the lens of those factors,” Russ said.
By acting in accordance with these and other pieces of wisdom, religious leaders can regain some peace of mind. But many litigation-related fears will still linger until the government addresses property owners’ concerns, Berry said.
“We’re in favor of having (liability protections) done sooner rather than later,” he said. “There are many places across the country that are ready to open up.”