Many churches have received ominous and unsolicited advertisements warning them to begin displaying workplace posters or face substantial fines and penalties. These advertisements have created considerable confusion and apprehension among church leaders. Are churches required to display posters? If so, which ones? And, what are the penalties for noncompliance?
This article is the second in a series that addresses the application of various poster requirements to churches under both federal and state law.
Poster Requirements Under Federal Law
In last month’s Church Treasurer Alert! we addressed poster requirements under the minimum wage and overtime law, federal nondiscrimination laws, and the Employee Polygraph Protection Act. This month, we will address poster requirements under the Occupational Safety and Health Act and the Family Leave Act.
Occupational Safety and Health Act (OSHA)
Employers covered by the Occupational Safety and Health Act (“OSHA”) are required to display a poster prepared by the U.S. Department of Labor summarizing the major provisions of the Act and telling employees how to file a complaint. The newly revised OSHA poster contains the following text:
- You have the right to notify your employer or OSHA about workplace hazards. You may ask OSHA to keep your name confidential.
- You have the right to request an OSHA inspection if you believe that there are unsafe and unhealthful conditions in your workplace. You or your representative may participate in the inspection.
- You can file a complaint with OSHA within 30 days of discrimination by your employer for making safety and health complaints or for exercising your rights under the OSH Act.
- You have a right to see OSHA citations issued to your employer. Your employer must post the citations at or near the place of the alleged violation.
- Your employer must correct workplace hazards by the date indicated on the citation and must certify that these hazards have been reduced or eliminated.
- You have the right to copies of your medical records or records of your exposure to toxic and harmful substances or conditions.
- Your employer must post this notice in your workplace.
Churches are required to post the OSHA poster if they are covered by the federal Occupational Safety and Health Act. Are churches subject to this law? In some cases they are. The Act defines covered employers to include any organization “engaged in a business affecting commerce that has employees.” If an employer is engaged in a business that “affects commerce” it will be subject to OSHA even it if has only one employee.
Key point. In enacting the Act, Congress “intended to exercise the full extent of the authority granted” to it by the Constitution’s “commerce clause.” Chao v. Occupational Safety and Health Review Commission, 401 F.3d 355 (5th Cir. 2005). There is little doubt that most churches are engaged in commerce and therefore are covered by the Act.
OSHA regulations leave no doubt that nonprofit organizations are subject to the Act and regulations:
The basic purpose of the Act is to improve working environments in the sense that they impair, or could impair, the lives and health of employees. Therefore, certain economic tests such as whether the employer’s business is operated for the purpose of making a profit or has other economic ends, may not properly be used as tests for coverage of an employer’s activity under the Act. To permit such economic tests to serve as criteria for excluding certain employers, such as nonprofit and charitable organizations which employ one or more employees, would result in thousands of employees being left outside the protections of the Act in disregard of the clear mandate of Congress to assure “every working man and woman in the Nation safe and healthful working conditions.” Therefore, any charitable or nonprofit organization which employs one or more employees is covered under the Act and is required to comply with its provisions and the regulations issued thereunder.
However, OSHA regulations treat churches as a special case. Here is what the regulations say:
Churches or religious organizations, like charitable and nonprofit organizations, are considered employers under the Act where they employ one or more persons in secular activities. As a matter of enforcement policy, the performance of, or participation in, religious services (as distinguished from secular or proprietary activities whether for charitable or religion-related purposes) will be regarded as not constituting employment under the Act. Any person, while performing religious services or participating in them in any degree is not regarded as an employer or employee under the Act, notwithstanding the fact that such person may be regarded as an employer or employee for other purposes—for example, giving or receiving remuneration in connection with the performance of religious services.
This language is very important. It demonstrates that the Occupational Safety and Health Administration, which enforces the Act, considers churches to be subject to the Act and regulations, but for policy reasons will take no “enforcement” action against them for violations of the Act and regulations in “the performance of, or participation in religious services” since “any person, while performing religious services or participating in them in any degree is not regarded as an employer or employee under the Act, notwithstanding the fact that such person may be regarded as an employer or employee for other purposes.”
The regulations list the following examples of religious organizations that would be covered employers under the law:
- a private hospital owned or operated by a religious organization
- a private school or orphanage owned or operated by a religious organization
- commercial establishments of religious organizations engaged in producing or selling products such as alcoholic beverages, bakery goods, religious goods, etc.
- administrative, executive, and other office personnel employed by religious organizations [29 CFR 1975.4(c)]
On the other hand, the regulations list the following examples of religious organizations that would not be covered employers under the law:
- churches with respect to clergymen while performing or participating in religious services
- churches with respect to other participants in religious services such as choir masters, organists, other musicians, choir members, ushers, and the like [29 CFR 1975.4(c)]
The special treatment of churches and church employees under the OSHA regulations helps to explain why no court has addressed the application of the Act to churches. The fact is that most churches would be considered “employers” under the Act because they are engaged in interstate commerce, but, OSHA has chosen not to assert jurisdiction over churches except in special circumstances.
The partial exemption of churches from OSHA coverage is illustrated by the following examples:
Example. A church uses a small band during worship services. A church member brings an audiometer to a worship service and measures peaks of 105 decibels on the front row with a sustained reading of 95 decibels. The church’s music minister (a full-time employee) is exposed for several minutes during each worship service to decibel levels exceeding OSHA standards. Must the church take remedial action prescribed by the OSHA regulations? The OSHA regulations specify that “as a matter of enforcement policy, the performance of, or participation in, religious services will be regarded as not constituting employment under the Act. Any person, while performing religious services or participating in them in any degree is not regarded as an employer or employee under the Act.”
Example. Helen is a church organist. She plays the organ several times each week at worship services, choir rehearsals, funerals, weddings, and other special functions. She is frequently exposed to decibel levels exceeding the permissible levels specified by OSHA. Is the church liable for exceeding these limits? The OSHA regulations specify that “as a matter of enforcement policy, the performance of, or participation in, religious services will be regarded as not constituting employment under the Act. Any person, while performing religious services or participating in them in any degree is not regarded as an employer or employee under the Act.” In addition, OSHA regulations list “participants in religious services such as choir masters, organists, other musicians, choir members, ushers, and the like” as an example of persons who are outside of the scope of OSHA coverage.
Example. Beth is a church employee who complains to the senior pastor about a crumbling asbestos ceiling in her work area. Over the past several months several pieces have fallen to the floor, spewing dust into the air. Beth asks the senior pastor if the ceiling’s condition violates OSHA. The pastor does not believe that OSHA applies to conditions in a church office. The pastor is incorrect. OSHA regulations list “administrative, executive, and other office personnel employed by religious organizations” as an example of covered employment under OSHA.
As these examples demonstrate, churches are only partially subject to OSHA regulations. The official OSHA poster does not take the unique status of churches into account, and may cause confusion unless properly modified.
The OSHA poster can be ordered without charge on the OSHA website (www.osha.gov).
Family Medical Leave Act
The Family Medical Leave Act provides certain employees with up to 12 weeks of unpaid, “job-protected” leave each year to give birth or to care for a family member, and requires group health benefits to be maintained during the leave as if the employee continued to work instead of taking leave. This law only applies to employers having 50 or more employees.
All covered employers are required to display and keep displayed a poster prepared by the Department of Labor summarizing the major provisions of the Act and telling employees how to file a complaint. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it.
The official FMLA poster prepared by the Department of Labor is one page long. Here are some of the key provisions:
- FMLA requires covered employers to provide up to 12 weeks of unpaid, job-protected leave to ”eligible” employees for certain family and medical reasons. Employees are eligible if they have worked for their employer for at least one year, and for 1,250 hours over the previous 12 months, and if there are at least 50 employees within 75 miles.
- Unpaid leave must be granted for any of the following reasons: (1) to care for the employee’s child after birth, or placement for adoption or foster care; (2) to care for the employee’s spouse, son or daughter, or parent who has a serious health condition; or (3) for a serious health condition that makes the employee unable to perform the employee’s job.
- At the employee’s or employer’s option, certain kinds of paid leave may be substituted for unpaid leave.
- The employee may be required to provide advance leave notice and medical certification. Taking of leave may be denied if requirements are not met. The employee ordinarily must provide 30 days advance notice when the leave is ”foreseeable.” An employer may require medical certification to support a request for leave because of a serious health condition, and may require second or third opinions (at the employer’s expense) and a fitness for duty report to return to work.
- For the duration of FMLA leave, the employer must maintain the employee’s health coverage under any ”group health plan.”
- Upon return from FMLA leave, most employees must be restored to their original or equivalent positions with equivalent pay, benefits, and other employment terms.
- The use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee’s leave.
- FMLA makes it unlawful for any employer to: (1) interfere with, restrain, or deny the exercise of any right provided under FMLA; or (2) discharge or discriminate against any person for opposing any practice made unlawful by FMLA or for involvement in any proceeding under or relating to FMLA.
The Family Medical Leave Act contains no special rules or exceptions for religious organizations, and so the official poster can be used without modification.
You can obtain a free copy of a poster from any local office of the United States Department of Labor, Wage and Hours Division, or by visiting the DOL website (www.dol.gov/esa).
Example. A church has 20 employees. It is not subject to the Family Medical Leave Act (which only applies to employers having 50 or more employees). It is not required to display on its premises the Family Medical Leave Act poster.
Key point. The third and final article in this series on workplace posters will appear in the September 2006 edition of Church Treasurer Alert! It will address additional poster requirements under federal and state law, and explain the legal consequences of failing to comply with poster requirements.
This article first appeared in Church Treasurer Alert, August 2006.
