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Legal Alert: Governors Amended Executive Orders Affect Churches, Businesses, and Individuals

Stay At Home Orders

Legal Alert: Governors Amended Executive Orders Affect Churches, Businesses, and Individuals

By William R. Thetford, Esq. and H. Robert Showers, Esq.

Last Updated: November 20, 2020

The unprecedented series of health concerns, outbreaks, closures, restrictions, and lockdowns this year has been a recurring frustration for individuals, businesses, and churches. With the cooler weather, many states have experienced or anticipate an increase in COVID-19 case counts and have responded with revised Executive Orders clamping down on some of the things that have reopened since March. Recent states include Virginia, West Virginia (multiple orders as to schools, testing, and sports available here), Maryland, Pennsylvania (requiring testing before entering the state), and others.

For example, Virginia Governor Ralph Northam released an amended Executive Order 67 and amended Executive Order 63 each effective November 16, 2020. The Orders are stated to remain in effect until amended or rescinded by the Governor. The immediate health context for the revised Orders is a rise in new Coronavirus active cases, an average of approximately 1,500 new COVID-19 cases per day in the Commonwealth, that has now eclipsed the previous peaks earlier in the year. On the other hand, while COVID-related deaths and hospitalizations have increased in Virginia from recent months, those two metrics thankfully remain far below where they were April through June.[1]

The Orders have attracted media attention and given rise to fears that Virginia is entering another lockdown state similar to the early stages of the Coronavirus pandemic. While there are some similarities to the Executive Orders this spring and the Governor and health authorities have certainly stressed a renewed emphasis on precautions to stave off the recent rise in cases, the new Executive Orders only make a few major changes; otherwise, much of the content of previous Orders remains intact.

What Changed?

 The biggest change was that the threshold for “gatherings” is now limited to 25 people. This is after the threshold had been gradually raised in multiple phases from 10 under the stay-at-home Orders at the beginning of the pandemic to 250 immediately prior to the latest revision.

The Order sets as a general rule a ban on any “gathering” of more than 25 people. Gatherings include “parties, celebrations, or other social events, whether they occur indoors or outdoors.” However, similar to previous Orders, many common scenarios are exempted from the definition of a “gathering” so long as physical distancing and other requirements are adhered to. For instance, “the presence of more than 25 individuals performing functions of their employment or assembled in an educational instructional setting is not a ‘gathering.’” Executive Order 67, Amended November 13, Section B(1). Similarly, “individuals may attend religious services of more than 25 people” subject to certain requirements nearly identical to those laid out for churches and religious services since May.

The other important change was that Executive Order 63 was amended to require the use of face coverings for all people five years of age or older, as opposed to 10 years or older as before. Otherwise, the face covering requirement remains similar to what it has been since May: individuals are required to wear face coverings “when entering, exiting, traveling through, and spending time inside the settings listed” including all public facing shops, establishments, places of business, churches, or any indoor place shared by groups of people within close proximity to each other (personal residences are exempted). There is renewed emphasis in the amended Order requiring employees of essential retail businesses to wear face coverings when “working in customer facing areas.” Executive Order 63, Amended November 13, Section B.

How Does the New Executive Order Impact Churches and Religious Gatherings?

Assembling together for the purpose of a religious service is not a “gathering” under the Order. Thus, as long as the following requirements are met, groups of more than 25 can continue to meet for religious services:

  1. Individuals attending religious services must be at least six feet apart when seated and must always practice proper physical distancing. Family members, as defined below, may be seated together.
  2. Mark seating and common areas where attendees may congregate in six-foot increments to maintain physical distancing between persons who are not Family members.
  3. Any items used to distribute food or beverages must be disposable, used only once and discarded.
  4. Practice routine cleaning and disinfection of frequently contacted surfaces must be conducted prior to and following any religious service.
  5. Post signage at the entrance that states that no one with a fever or symptoms of COVID-19 is permitted to participate in the religious service.
  6. Post signage to provide public health reminders regarding physical distancing, gatherings, options for high risk individuals, and staying home if sick.
  7. Individuals attending religious services must wear cloth face coverings in accordance with Amended Executive Order 63, Order of Public Health Emergency Five.
  8. If religious services cannot be conducted in compliance with the above requirements, they must not be held in-person.

Most churches and places of worship have already developed procedures to abide by these restrictions since churches were allowed to reopen with these restrictions this summer after the initial stay-at-home Orders. However, a number of new questions arise in this season. One overarching question is what is meant by “religious services” which we address later in the article?

  1. Do recent court decisions make churches immune from liability arising from congregants not wearing masks?

Many churches have asked us about a recent Virginia Circuit Court decision out of Madison County, Virginia. The Court order was an Agreed Order that the mandatory requirements of  the Phase 3 Executive Order (such as the mask requirement) applied to individuals, not to the church if the number of people was below the threshold set by the Order (at that point 250). Some have interpreted the decision to mean churches are immune from liability under the Executive Order. Sadly, even before the amended Executive Orders, the reality of church liability was more complex. In any case, the Executive Order is clear that churches may only exceed the gathering limit of twenty-five people if the church can follow the COVID-management requirements. “If religious services cannot be conducted in compliance with the above requirements, they must not be held in-person.” Executive Order section B(1)(h). The church itself may be in violation of the Order for conducting services while allowing attendees to remain in noncompliance with the particular restrictions (face-coverings, social distancing, etc.).

  1. What about weddings and funerals?

The Executive Order itself does not address weddings and funerals directly. However, previous guidance associated with the series of COVID Executive Orders has indicated that religious services include “daily or weekly worship, ordination, baptism, wedding and funeral ceremonies, and observations associated with certain holidays.”[2] The Virginia Department of Health has since confirmed this understanding. Social activities, like a reception with food and socializing following a religious service would normally be considered a “gathering” not an exempt religious service.

  1. What about holiday services and end of year meetings?

Unfortunately, for such matters there is likely a gradient of more and less risk under the Order more than there are clear and distinct categories of approved and disapproved. A mere social gathering over 25 people conducted by a church with some connection to a holiday, will not be a “religious service.” However, there are other occasions when an event is clearly a religious service connected with Christmas, Thanksgiving, or another holiday, which can likely be done with the appropriate precautions and adhering to the requirements for religious services in Executive Order 67.

Questions in this area are likely to abound. However, outside of church worship services, the church must ask: how religious does it appear and what components show the religious nature of such an event? While we all now have the benefit of experience of the application of the Executive Orders from March until the present, there is little formal precedent. Decision makers will have to be shrewd and intentional to navigate the health and legal labyrinth. Some readers will want to review our related articles about virtual church business and member meetings and conducting virtual youth ministry. If you are concerned about liability or adherence to the regulations in connection with an event or service you have planned, we would be happy to consult with you. Please contact us and we can help you make educated decisions and reduce the risk to the extent possible. We can also discuss producing assumption of risk waivers and pre-registration for your activities as other tools to set healthy expectations, reduce liability, and reduce unnecessary litigation.

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Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Robert Showers at hrs@simmsshowerslaw.com or Will Thetford at wrt@simmsshowerslaw.com for legal advice that will meet your specific needs.

[1] COVID-19 in Virginia: Cases, Virginia Department of Health, https://www.vdh.virginia.gov/coronavirus/coronavirus/covid-19-in-virginia-cases/ (last visited November 19, 2020).
[2] Considerations for Religious and Social Events, Virginia Department of Health, https://www.vdh.virginia.gov/coronavirus/
frequently-asked-questions/observing-religious-holidays-during-covid-19/
(last visited November 19, 2020).
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