Avoid Unmasking an OSHA Violation

Your ministry may have adopted COVID-19 best practices, like social distancing and mask wearing, even if it was not required by your state. These measures help slow the virus’s spread to protect attendees and volunteers. It’s a different story when it comes to keeping employees safe. A federal agency governs employee safety in the workplace—and it says some of its standards apply to preventing occupational exposure to COVID-19. Does that mean employees can file a claim with a government agency if you fail to protect them against workplace exposure to the virus?


Your ministry may need to adopt additional measures to keep employees safe and to comply with federal regulations. 

Under the Occupational Health and Safety Administration (OSHA) General Duty Clause,1 an employer has a responsibility to ensure a safe working environment for its employees. While no workplace safety standard specifically addresses the protection of workers from COVID-19, OSHA states that the General Duty Clause and other provisions of the standards offer a framework to prevent occupational exposure to bodily fluids. This may include the respiratory secretions associated with exposure to COVID-19.2 These standards extend to chemicals used for cleaning and disinfection, too.

Since the start of the pandemic, some states have specifically included COVID-19 as an occupational illness, making it clear that the disease is available to workers’ compensation claims. This coverage extension applies mostly to certain workers in high-risk occupation groups.3

OSHA standards cover religious organizations

OSHA covers employers—including some religious organizations, schools, and hospitals—with at least one employee. However, a religious organization does have an exemption if it only employs individuals performing purely religious services.4 

The agency states a person “performing or participating in religious services” is not an employee under OSHA standards and therefore is an uncovered person. The following are a few examples of types of employees exempt from OSHA regulations and provisions: clergy, choir masters, organists, and musicians. 

Religious organization are not exempt from covering their other employees, however. Individuals performing secular duties, such as maintenance staff or office workers, are covered by OSHA’s protections.  Your state department of labor can offer guidance if you are unsure of an employee’s status.

Note: A person who performs or participates in religious services may be considered an “employee” for other governmental purposes.

Avoid citations and fines

Since the start of the pandemic, OSHA has issued citations to employers for coronavirus-related violations. The result is more than $1 million in fines.5 A few examples of violations include not having a written COVID-19 plan, failing to provide basic protections, and improper recordkeeping.

To limit your ministry’s exposure to an OSHA citation and to protect employees, employers should assess their workplaces and create a plan to limit COVID-19 exposure. Your plan may include a combination of training, social distancing, masks, staggered work hours, enhanced cleaning schedules, and more. Be sure to evaluate ministry events and activities for exposure where an employee is required to work. 

Brotherhood Mutual has dozens of resources for ministries related to COVID-19. Search “COVID-19” at www.brotherhoodmutual.com.       

Get organized for safety

If you are starting work on an exposure-reduction plan for employees, the following steps can help get you organized. If you already have a plan in place, check it against these steps:  

Ministries should: 

  • Keep good records. Preserve your safety protocols including rules, consequences, updates, and actions taken. Brotherhood Mutual’s legal team addresses considerations for complying with federal recordkeeping in this linked article. Many states have developed their own protocols. Contact your state department of labor for more information.

  • Support your reasons why. Use supporting documents when creating your safety protocols. Cite best practices from the CDC, and/or your state and local health agencies. Photographs can be helpful of work areas. Also provide support for why you believe that a hazard does not exist and why no action was taken by the ministry.

  • Follow approved guidelines for cleaning and sanitation. Brotherhood Mutual has prepared several resources to help ministries deep clean and disinfect, clean high-touch areas, and clean children’s areas.

  • Know what to do if an employee tests positive for COVID-19. This is an important step in maintaining a healthy environment for employees. This article outlines how to respond to and track positive tests within the ministry workplace.

  • Encourage feedback. Let your employees know that it’s okay for them to bring concerns and suggestions to the leadership’s attention. Transparency and cooperation often alleviate misunderstandings. 

A note about waivers

You may currently ask volunteers, attendees, or visitors to sign a health screening waiver form before entering your facility or participating in an activity. Employees, on the other hand, are uniquely protected from hazardous workplaces by federal and state workers’ compensation laws.

The right for an employee to file a workers’ comp claim usually cannot be waived.6 According to OSHA, a liability waiver is unlikely to prevent or preclude an employee’s right to file a safety, health, or retaliation claim under the OSHA act.7 

Ministries desire to create the healthiest environment for their employees to thrive, teach, and learn. Doing all that you can to keep employees safe while at work is the first, crucial step. You’ll be a good steward to the people responsible for your ministry’s mission and protect your financial resources, too.

1 “OSH Act of 1970.” United States Department of Labor, Occupational Safety and Health Administration, accessed 20 October 2020. https://www.osha.gov/laws-regs/oshact/section5-duties.
2 “COVID-19, Standards.” United States Department of Labor, Occupational Safety and Health Administration, accessed 22 October 2020. https://www.osha.gov/SLTC/covid-19/standards.html
3 Cunningham, Josh. “COVID-19: Workers’ Compensation.” National Conference of State Legislatures, 28 August 2020. https://www.ncsl.org/research/labor-and-employment/covid-19-workers-compensation.aspx
4 Coverage of Employees under the Williams-Steiger OSHA 1970—Standard 1975.4(b)(4), 1975.4(c), 1975.4(c)(1), 1975.4(c)(2), United States Department of Labor, Occupational Safety and Health Administration, accessed 23 October 2020. https://www.osha.gov/laws-regs/regulations/standardnumber/1975/1975.4
5 “U.S. Department of Labor's OSHA Announces $1,603,544 In Coronavirus Violations.” United States Department of Labor, Occupational Safety and Health Administration, accessed 23 October 2020. https://www.osha.gov/news/newsreleases/region/10232020
6 Morra, Michael. “Can My Employer Ask Me to Sign a COVID-19 Waiver?” NOLO, accessed 15 October 2020. https://www.nolo.com/legal-encyclopedia/can-my-employer-ask-me-to-sign-a-covid-19-waiver.html#:~:text=Some%20employers%20want%20their%20workers,agreements%20might%20not%20be%20enforceable.&text=As%20a%20result%2C%20some%20employees,waivers%20upon%20returning%20to%20work
7 “COVID-19 Frequently Asked Questions, Liability Waivers.” United States Department of Labor, Occupational Safety and Health Administration, accessed 21 October 2020. https://www.osha.gov/SLTC/covid-19/covid-19-faq.html#cloth-face-coverings

Posted October 29, 2020

The information provided in this article is intended to be helpful, but it does not constitute legal advice and is not a substitute for the advice from a licensed attorney in your area. We strongly encourage you to regularly consult with a local attorney as part of your risk management program.