July 5, 2020
From: Presbytery of San Francisco Transitional Staff
To: Our Sister Churches
Re: Reopening Churches and Church Liability
Brothers and Sisters,
As we all consider limited reopening of our church campuses, for our own worship, for other users and especially for childcare centers, we want to bring to your attention several concerns that your Session must evaluate and strategize. Last week we sent you materials about generally accepted Covid use protocols (available on our website) and we promised follow-up information this week on insurance and liability information.
Some insurers specifically do not cover the church for liability incurred from virus transmission. Church Mutual, for instance, specifically refuses to cover such. Many insurers reduce coverage or simply offer no insurance for this or any other virus illness. Please check with your insurer and verify whether you have coverage or not, and factor that into your planning.
Whether your insurance protects you or not, you still face the risk of lawsuits from users of your church who get infected and believe that they may have been infected at your church. Currently our State has no laws protecting businesses or organizations from being sued if someone claims to have gotten sick at your church. The law requires that you follow accepted protocols for safety, and that you have taken reasonable precautions against the transmission of illnesses. But a lawsuit can still claim that either you did not take such precautions, or that you claimed to do so but somehow failed to fully follow those protocols. So the key point here is that your Session must have written protocols for safety and cleanliness in the midst of this pandemic, they must be in full alignment with your county public health requirements, and you must ensure that those are followed by you, your parishioners, and by every user of your site. Having them is not enough; they must somehow be communicated to every person who uses your facility and they must be followed.
A liability release can help improve your chances of prevailing in a lawsuit, but it does not fully preclude someone from suing you even if they sign one. But a liability release can help you make a stronger defense against a lawsuit.
We are attaching two such releases that are appropriate for you to use with church schools, whether the school is run by your church or whether it is an outside entity who runs it. We strongly recommend that every teacher and administrator, as well as every parent, sign a release. These can also be edited for use with other church users and user groups.
If you do get sued, and your insurance does not cover the cost of the lawsuit, you will have to pay your own attorney fees as well as the cost of any settlement or award. Absent insurance, the single largest asset that most churches have is their property. But remember, all property is held in trust for the PCUSA, so that means that each church is a trustee of that property, not the owner under the church constitution, so you risk losing property that belongs to the whole church. State law does not explicitly recognize that distinction in the case of a lawsuit, so both you and the Presbytery are at risk of suit as members of the PCUSA. If your Session does not understand that distinction it makes no difference: if you get sued, you can lose your church property regardless of how the title is listed.
In addition, the coverage that most church liability policies offer for directors and officers (the Session and the Pastoral leaders) may not cover the individual board members and officers against a lawsuit naming them as negligent.
So please consider strongly the downside risks of any reopening strategy, and be intentional in the face of the risks that you incur in doing so.
The attached liability releases (in both English and Spanish) are in MSWord form and can be edited. You can adapt them to use for other users as well. Please let us know if you have questions about how to use them.
God’s blessings to you in these very strange times.
Jennifer Sacramento Streett, Partner for Operations and Presbytery Wide Communications
Rochelle R. Shaw, Stated Clerk
Rev. Leonard Nielson, Partner for Finance and Property Assets
Rev. InHo Kim, Partner for Congregational Vitality and Clergy Support