Pastor, Church & Law

Key Point 8-19. The Occupational Safety and Health Act imposes various requirements upon employers in order to achieve safe and healthful working conditions. The Act applies to any employer engaged in commerce, regardless of the number of employees. There is no exemption for religious organizations, but the Occupational Safety and Health Administration has not applied the Act, as a matter of discretion, to employees engaged in religious services.

In 1970, Congress enacted the Occupational Safety and Health Act (OSHA) “to assure so far as is possible every working man and woman in the nation safe and healthful working conditions.”¹³³ 29 U.S.C. § 651(b).The Act achieves its aim primarily through imposing various duties upon employers. 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. In enacting the Act, Congress “intended to exercise the full extent of the authority granted” to it by the Constitution’s “commerce clause.”¹³⁴ Chao v. Occupational Safety and Health Review Commission, 401 F.3d 355 (5th Cir. 2005).

OSHA regulations clearly specify that nonprofit organizations are subject to OSHA 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 OSHA considers churches to be subject to the provisions of the Act and regulations, but for policy reasons no “enforcement” action will be taken against a church that violates OSHA regulations in the course of “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 regulations¹³⁵ 29 C.F.R. 1975.4(c).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

On the other hand, the regulations¹³⁶ Id.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

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 case studies:

Case studies

• 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 fulltime employee) is exposed for several minutes during each worship service to decibel levels exceeding those specified by OSHA. Must the church implement “administrative or engineering controls” to reduce the noise to levels to acceptable levels or provide “personal protective equipment” to its music minister? 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.”
• A church uses a small orchestra during worship services twice each week. The orchestra practices for two hours each week in addition to performing in worship services. Members of the orchestra are 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.
• 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.
• Jon is a sound technician employed by a church. His job is to make sure that sound levels are adequate during all church services and functions. He is required to be present at all rehearsals as well as services and special functions. He is often exposed to music that exceeds 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. Does this exception apply to a sound technician? Does his work constitute participation in a religious service “in any degree”? Neither OSHA, nor any court, has addressed this issue. It remains a possibility.
• Pastor Ted has heard that churches are exempt from OSHA. Is this correct? The answer is no. The Occupational Safety and Health Act specifies that “each employer shall furnish to each of his employees a place of employment free from recognized hazards that are causing or are likely to cause … serious physical harm.” It 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. In enacting the Act, Congress “intended to exercise the full extent of the authority granted” to it by the Constitution’s “commerce clause.” This language is so broad that there is no doubt that most churches are subject to OSHA. However, as a matter of discretion, 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.” As a result, “any person, while performing religious services or participating in them in any degree is not regarded as an employer or employee under the Act” even though that person is regarded as an employee for other purposes (such as tax reporting). However, OSHA regulations list the following examples of religious organizations that would be covered employers under the law: (1) a private hospital owned or operated by a religious organization; (2) a private school or orphanage owned or operated by a religious organization; (3) commercial establishments of religious organizations engaged in producing or selling products such as alcoholic beverages, bakery goods, or religious goods; (4) administrative, executive, and other office personnel employed by religious organizations. In summary, churches are subject to OSHA with regard to any of these situations.

Key Point. OSHA violations can result in substantial penalties. These penalties depend on a number of factors. To illustrate, willful or repeated violations of OSHA requirements may result in a penalty of up to $70,000 for each violation (with a minimum penalty of $5,000 in the case of willful violations). Employers who fail to correct a citation issued by OSHA may be assessed a penalty of up to $7,000 for each day that the violation continues. The Occupational Safety and Health Act specifies that OSHA has authority “to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.”

The courts consistently apply a “ministerial exception” to state and federal employment laws based on the assumption that resolution of employment disputes between churches and ministers would entangle the courts in internal church matters in violation of the First Amendment.¹³⁷ See § 8-10, supra.As one court aptly noted in a case involving a dismissed minister’s claim of wrongful termination, “This case involves the fundamental question of who will preach from the pulpit of a church. … The bare statement of the question should make obvious the lack of jurisdiction of a civil court. The answer to that question must come from the church.” A federal appeals court has applied the ministerial exception to a minister’s claim for overtime pay under the federal Fair Labor Standards Act.¹³⁸ Shaliehsabou v. Hebrew Home of Greater Washington, 363 F.3d 299 (4th Cir. 2004)

Such rulings suggest that ministers may not be able to pursue monetary damages against their employing church for OSHA violations. This issue has never been addressed by a court. It is possible that the ministerial exception would not be applied in an OSHA case, since it pertains to compliance with federal safety regulations that likely would involve no interpretation of church doctrine. Even if the ministerial exception did apply to OSHA claims, it would not bar claims by lay employees.

A covered employer’s legal obligation under the Act is to provide employees with a safe place to work. OSHA regulations prescribe several rules to assist employers in complying with this basic requirement. In effect, the regulations could be viewed as reasonable “standards of care.” As a result, they might be used by church employees and members to establish a standard of care applicable to churches even with respect to “exempt” positions.