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Re-Opening: Yet, Not Yet, Somewhere In-Between?

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Gathering in person for nonprofit programs, religious worship, and work: how does a nonprofit engage in these activities mid-pandemic? With masks becoming ubiquitous, people yearning to connect, and Zoom tolerance tiring, nonprofit leaders are taking a variety of approaches for operating amidst coronavirus-related restrictions. In our law practice, we are seeing precautions for religious worship, school activities, and other social service programming such as the following:

  • Opening for in-person services, with hybrid options for remote participation;
  • Abiding by recommended percentage occupancy restrictions for both programs and staffing presence;
  • Utilizing outdoor space options for programs;
  • Using participant consent and waiver forms that specially address COVID-19 issues;
  • Providing for remote work options, with continued emphasis on remote work arrangements where feasible.
  • Encouraging people to self-monitor for illness and symptoms;
  • Following best practices for social distancing, face coverings, and cleanliness;
  • Encouraging at-risk persons to take extra precautions;
  • Expressing concern and sensitivity for all through communications; and
  • Keeping the nonprofit’s mission always in focus, with creativity, patience, and prudence.

These practices seek to facilitate nonprofit programming while being mindful of current legal constraints and recommended practices. A comprehensive assessment of the above practices for every jurisdiction is outside the scope of this article. However, in the following paragraphs we provide a summary of guidance to assist nonprofits in their efforts to safeguard participants and remain complaint with applicable law in Illinois and South Carolina – reflecting our law firm’s presence in Chicago and Charleston. While not strictly applicable to all states, the guidelines below underscore widely applicable legal principles addressing COVID-19-related concerns for nonprofits thinking about reopening.

Illinois Guidance

The state of Illinois is currently in Phase 4: Revitalization, as stated in Governor Pritzker’s Executive Order dated June 26, 2020. The Illinois Department of Public Health (IDPH) has issued guidance for religious houses of worship, which includes the following:

  • When the current statewide limits on gatherings of 50 people cannot be implemented, leaders are encouraged to limit occupancy to 25% of building capacity or a maximum of 100 people.
  • Serve food or drinks in a way that decreases the chance of cross-contamination. Use single-serve containers and separate people by household while eating.
  • Use social distancing, face coverings, cleanliness protocols, and frequent disinfecting of commonly touched surfaces.
  • Gather outside or in a drive-in format when possible.
  • Increase social distance measures to 10 feet if the congregation is singing or reciting.

See IDPH Guidance for Places of Worship here.

With respect to non-religious activities, the Illinois Department of Commerce and Economic Opportunity (DCEO) has issued guidance in conjunction with the IDPH, which includes the following directions:

  • Offices may operate at a maximum of 50% capacity.
  • Employees who can work from home should continue to do so.
  • Wear a face covering that covers nose and mouth, maintain social distance of 6 feet, and frequently wash hands.
  • Continue employee health screenings upon entry into the workplace.
  • Follow guidelines on capacity limits and group sizes (to be continually reassessed throughout Phase 4). Generally, the lesser of 50% capacity and 50 people is recommended for non-religious activities.

See the Illinois Phase 4 Guidelines Overview and industry-specific guidelines. For the city of Chicago, check here regularly for updated capacity limits and closure information.

South Carolina and Other Guidance

South Carolina does not have a state-specific COVID-19 phased re-opening structure, and therefore falls under the greater umbrella of the United States’ acceleration phase, as stated on the South Carolina Department of Health and Environmental Control’s website.

South Carolina’s Governor Henry McMaster’s Emergency Order dated April 6, 2020 states that “attending religious services conducted in churches, synagogues or other houses of worship” is an activity specifically exempt from any stay-at-home order. Houses of worship continue to be allowed to gather, and they are encouraged to follow social distancing guidelines.

Additionally, the federal Centers for Disease Control has provided “Considerations for Communities of Faith,” which contains additional best practices for houses of worship looking to resume in-person gathering.

Prudence is a Virtue!

Remember that nonprofit directors and leaders should continue to act and lead prudently. According to the online Merriam-Webster dictionary, the word “prudence” is (1) the ability to govern and discipline oneself by the use of reason; (2) sagacity or shrewdness in the management of affairs; (3) skill and good judgment in the use of resources; (4) caution or circumspection as to danger or risk.

Stated differently, directors, officers and other leaders must lead wisely and carefully, utilizing available information and taking reasonable steps to advance the mission well. Here is a recap of key prudential considerations, recapped from our law firm’s prior blog guidance.

1. Remember the Fiduciary Duty of Care

Organizational leaders owe a fiduciary duty of due care related to programming and activities. This means leaders will be measured by the legal standard known as the “business judgment rule,” under which directors and officers are presumed to make decisions on an informed basis and in good faith. This legal standard raises the question: what would an objectively reasonable person would do in a similar situation? The answer is typically that they would follow applicable laws and otherwise adhere to “best practices” standards for safety and care. For more information, see our blog on duty of care.

2. Follow Operational Best Practices

Within the context of COVID-19-related safety issues, organizational leaders need to consider how best to handle safety issues within the context of their operations, as listed above. While COVID-19 may be new, such risk management considerations are perennial.

3. Address Personnel Matters

Now may be an excellent time to update employee handbooks and otherwise address safety considerations for employees and volunteers, as well as to memorialize permissible remote work arrangements. For guidance on such workplace considerations, including how to handle reported illness or symptoms, see our blogs from June 22, 2020 and July 22, 2020.

4. Keep Communicating - Well

Organizations need to communicate updated safety and program participation information to all who are involved in their activities. Demonstrate concern for all engaged with the organization, let people know about current arrangements and what lies ahead in the immediate future, and explain what is important about both in-person attendance and remote operations.

Note too that religious organizations occupy a unique and special place in our country, as well as in our country’s legal framework – as evidenced by primacy in the First Amendment. Houses of worship are essential in ways that governments do not always affirm or provide for. To maximally protect their worshipping bodies’ rights to worship, religious leaders thus should be prepared to communicate why they believe that meeting in person is both doctrinally significant and vitally important to spiritual and overall health. Such communications in turn may lead to productive dialogue about religious organizations’ role in society, the deep human need for fellowship, and the ways in which houses of worship can minister to people – both through in-person religious services and a whole host of other missional opportunities.

5. Train, Train, Train

Training is vital for the above protocols. Train staff, volunteers, and religious worship participants how to safely carry out new COVID-19-related steps for improved cleanliness, program activities, occupancy restrictions, and other expectations. Document a nonprofit’s training steps to memorialize the organization’s compliance with applicable best practices standards.

6. Use Program Waivers

To help reduce and avoid potential liability, consider using updated general waivers or a COVID-19-specific waiver for program activities. Here is one example for a COVID-19-specific waiver, with potential modification to include parent/guardian consent for participating minors:

By attending ____________’s ministry activities, you acknowledge the contagious nature of COVID-19 and voluntarily assume the risk that you [ADD - and your family members; modify elsewhere accordingly as appropriate] may be exposed to, including infection by COVID-19. You also acknowledge that the risk of becoming exposed to or infected by COVID-19 may result from the actions, omissions, or negligence of yourself and/or others, including, but not limited to, _________’s employees, contractors, volunteers, and participants. You agree to assume all the foregoing risks, waive liability against _________ and any other listed parties, and accept sole responsibility for any illness, injury, disability, or death, including all claims that may arise resulting from any of these. You also agree to comply with all applicable restrictions as set forth by __________, including face coverings, social distancing, and other safety precautions.

Accepted: ________________________________

Date: ______________________

Please note that under Illinois law, and most other state jurisdictions, parents cannot generally waive their children’s (or other minors’) legal rights. Parent may waive their own - which is significant - but not their children’s rights.[1] Most waivers include language waiving children’s rights (like this one), but nonprofit leaders should understand such language would likely not be binding in litigation. Such waivers may be otherwise helpful, however, such as to fully inform parents regarding anticipated activities, to dissuade them on moral grounds from making any adverse claims, and to be used as evidence in event of potential litigation. Legal guidance regarding waivers thus be quite appropriate.

Note also, that such waivers are not appropriate for employees, in light of applicable workers’ compensation coverage for their employment activities.

7. Check Insurance

This is an optimal time too to verify insurance coverages for potential personal harm and organizational liability. Insurance companies may be offering or revising policies to include COVID-related risks.

8. Check Contract Language

So much of life these days is still very “TBD” – to be determined at a future date. Consequently, with respect to special event or vendor contracts, check the language carefully regarding options for potential cancellations. Each contract should contain some type of “force majeure” or “Act of God” contract language that liberally allows for cancellation, with minimal adverse financial consequence to the organization. Again, such impossibility or force majeure clauses raise significant technical legal issues requiring a nonprofit to obtain legal assistance to properly employ.

May these updates, options, and recommendations help many nonprofit leaders continue to lead the charge for vibrant and effective mission accomplishment, whether in person, fully remote, or somewhere in between.

[1] See e.g. Meyer v. Naperville Manner, Inc., 634 N.E.2d 411, 414 (1994) (holding "It is now the general rule that, in the absence of statutory or judicial authorization, a parent cannot waive, compromise, or release a minor child's cause of action merely because of the parental relationship.”).

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