Balancing Hospital Visitations and Religious Freedoms During a Pandemic

On October 20, 2020, the Office for Civil Rights (“OCR”) settled two religious discrimination complaints involving access to clergy during the Public Health Emergency. Both complaints arose from a hospital’s failure to permit visits by religious clergy due to COVID-19 visitor restrictions. In the first complaint, a COVID-19 positive new mother requested that a priest visit her newborn son and baptize him. Due to its restrictive visitor’s policy, the hospital refused. In the second complaint, a priest was denied ICU access in order to provide Catholic religious sacraments to an end-of-life patient.

In connection with resolution of the complaints, OCR provided technical assistance and guidance to the hospitals in order to strike a balance between protecting the hospital’s staff, visitors, and patients and respecting the patient’s right to religious support. OCR approved the following requirements for visiting clergy:

• Visiting clergy must follow all safety policies put in place by the hospital, including COVID-19 screening protocols;
• Visiting clergy must adhere to proper infection prevention practices, such as hand washing, physical distancing and wearing a mask;
• Visiting clergy must complete infection control training;
• Visiting clergy must use fit-tested Personal Protective Equipment (“PPE”);
• Visiting clergy must sign an acknowledgement of the risks associated with visiting a patient who tested positive for COVID-19; and
• In urgent end-of-life situations, an exception to the controls listed above may be made but visiting clergy must self-quarantine for 14 days following the visit.

Hospitals are encouraged to review their visitation policies for compliance with a patient’s right to religious support. For questions related to policies related to hospital visitation during the COVID-19 pandemic, please contact one of the authors of this alert.