6 legal issues to consider when reopening your church

June 17, 2020

Church leaders need to be aware that as they reopen their churches post-pandemic, compliance with local ordinances or executive orders from governors should not be the only legal issue on which they focus. There is also a significant risk of lawsuits against churches in the coming days as the fallout of the pandemic continues. Plaintiffs’ lawyers are on the lookout for more targets, and churches are being lumped into potential targets with nursing homes and cruise lines. The following is legal information for your consideration but not legal advice. If you need legal advice, especially as it pertains to your locality, you should consult an attorney licensed in your state. With that said, here are some factors and questions to consider as your church works toward regathering: 

1. Review your insurance policy and discuss your coverage with your insurance carrier.

Have you contacted your church’s insurance carrier for information about your general liability coverage for COVID-19 related claims, or other claims, when you reopen? Are there any requirements from your insurance company in regard to sanitation protocols that you must follow in order for your insurance to provide coverage when you reopen? If your insurance will not provide coverage for COVID-19 related claims, should you purchase a rider policy to cover any COVID-19 related incidents? Even if your church does not do anything wrong and upholds the highest standards, it is still costly to defend a lawsuit. 

While in most situations church leadership is protected from being held personally liable for wrongdoings of the church, in the event the church is sued for gross negligence, there is a possibility that church leaders, including lay pastors and elders, could be held personally liable for not meeting their duty of care to members and visitors on their church campus. As such, it is incredibly important to uphold high standards as your church begins to gather and reopen its facilities.

2. Understand and comply with legal requirements. If you are concerned about constitutional overreach, contact an attorney with experience in religious liberty issues. 

What does your state and local government say about what you must do or provide for when you reopen? Do they provide any suggested guidance, which is not required but instead recommends best practices in light of transmission of disease in your area? If so, these suggestions might set the standard of care and would be considered when deliberating whether your church met its duty of care in the event your church is sued. Does this local and state guidance differ from the Center for Disease Control and Transmission’s recommendation for places of worship? 

It is advisable to make a record of what protocols you put in place and why you chose to do what you did. Document your church leadership’s state of mind so that in the event you are sued, you have evidence of the safety measures enacted and why you thought what you were doing was the best practice to put in place. 

If churches in your area are being treated differently than other entities hosting public gatherings, you should consider contacting an attorney with religious liberty experience for guidance. 

3. Consider what additional layers of legal protection might be helpful.

Many pastors are asking whether they should have those in attendance sign a liability release waiver in order to attend a church service. There are attorneys advocating on both sides of this issue. Some attorneys think that liability release waivers would be ineffective at protecting a church regathering during the pandemic, would not be upheld in a court, and would give a false sense of security to the church. Yet there are other attorneys who believe it would provide an additional layer of protection to churches who are also holding up high standards of cleanliness and sanitation. 

A properly written liability release waiver is a valid contract. Contract law varies state to state, but there are some general similarities between the states. Contracts are agreements between two parties where an offer and acceptance is made. Generally, minors cannot be parties to legally binding documents. If you choose to use a liability release form, each adult should sign the document in his or her own capacity and not on behalf of another adult, like his or her spouse. It is advisable to have an attorney licensed in your state draft a legally enforceable liability release form if you choose to use one.  

4. Screening staff and congregants.  

Should you screen staff and volunteers prior to permitting them to work on Sunday mornings with the general public at your church services? Under normal circumstances, taking your staff’s temperature would be medically invasive and not permissible under the Americans with Disabilities Act (the ADA). However, the Equal Employment Opportunity Commission, the entity tasked with enforcing the ADA, has stated that temperature checks at this time are valid and appropriate. 

If you choose to take temperatures, whoever conducts the checks should be wearing proper protective equipment, including a face mask and gloves, and use a contactless thermometer. 

Screening your staff and congregants prior to entering the building is not a replacement for mask wearing and social distancing due to asymptomatic spread of the disease. Churches are hotspots for superspreading events, so proceed cautiously.

5. Plan for the near future. 

Make a detailed plan for reopening, and be very communicative with your staff and church body about the plan. Advance planning is critical. Give notice to your congregation about what is going to be happening in the upcoming days. Train your staff and volunteers on the new protocols. Document that you trained your staff and volunteers, and include this in your church’s document retention system. 

6. Plan for an unknown future. Amend your bylaws and update your church policies.

Because a second wave of COVID-19 is possible, if not likely, it is worth considering amending your church’s bylaws this summer to provide for virtual church business meetings. Churches still need to function administratively and must account for the reality that this disease may prohibit in-person meetings at some point in the future. What kind of notice for meetings do your bylaws require? Should you amend your bylaws to provide for notice of meetings via email and to hold them electronically or telephonically in the event of a second wave of the coronavirus? Are members only permitted to attend meetings, or do you permit guests? Do your bylaws disallow for voting by proxy? Who decides whether or not a virtual church meeting will be recorded or not? 

As you reopen, update your church’s handbooks and policies regarding infectious disease and medical leave. Your policies and handbooks should be updated or modified to reflect the needs of your staff and congregation, as well as changes in the law, in light of the pandemic and its ongoing affects on workplaces and public places of gathering. 

As you consider all of these issues, my prayer is that you do so from a framework of loving others and not out of fear. Instead of fear over being sued, pastors should think shrewdly and proactively out of love for the gospel and the flock they are shepherding. 

Disclaimer: Ashli Arbo is an attorney licensed to practice law in the states of Oklahoma and Tennessee. This article is intended to provide information, not legal advice, and reading it does not establish an attorney-client relationship with Ashli Arbo, which is only formed by signing an engagement agreement. You can contact Ashli with any questions by submitting a form at www.ashliarbo.com

© 2020 Ashli Arbo. All rights reserved. 

Ashli Arbo

Ashli Arbo has been practicing law since 2007 and is a graduate of Union University and Liberty University School of Law. Arbo has represented individuals and entities in a wide variety of corporate and nonprofit matters, as well as teaching at a number of religious universities. Read More

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24