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New Crib Rules Will Impact Most Churches

By Richard R. Hammar

“We strive to ensure that a crib is the safest place for an infant or toddler to sleep.” — CPSC Commissioner Tenenbaum

Does your church have cribs in your nursery? Do you operate a child care center that has cribs? If you answered yes to either question, there are new federal regulations that apply to you — and, unfamiliarity with them could lead to substantial penalties and civil lawsuits that may implicate not only your church, but your church board as well. This article explains the new regulations and their impact on church practices.

Background

Baby cribs have contributed to numerous deaths and injuries due to faulty design and construction. This prompted the U.S. Consumer Product Safety Commission (CPSC) in 1973 to issue regulations addressing crib safety. But the regulations did not eliminate the problem, as evidenced by the fact the CPSC has recalled more than 11 million dangerous cribs since 2007.

Because of the continuing risk associated with baby cribs and other infant and toddler products, Congress enacted the Consumer Product Safety Improvement Act (CPSIA) in 2008, which required the CPSC to establish enhanced safety standards for infant and toddler products. The CPSC responded by voting unanimously to approve the first revisions to the crib safety regulations in nearly 40 years.

The new regulations not only mandate new safety standards in the manufacture and sale of cribs, but they also impose requirements on most child care centers. The regulations become effective in two stages:

June 28, 2011 — Safer Cribs

Beginning June 28, 2011, all cribs sold in the United States must meet the following requirements in the new regulations:

  1. Traditional drop-side cribs cannot be made or sold; immobilizers and repair kits cannot be used to rehabilitate a noncompliant crib. The regulations prohibit any person to whom the CPSIA applies to ‘‘manufacture, sell, contract to sell or resell, lease, sublet, offer, provide for use, or otherwise place in the stream of commerce a crib that is not in compliance” with the new standards. The CPSIA states that it applies to any person that: (A) “manufactures, distributes in commerce, or contracts to sell cribs”; (B) “holds itself out as having knowledge or skill peculiar to cribs, including child care facilities and family child care homes”; and (C) “owns or operates a place of public accommodation.”
  2. Wood slats must be made of stronger wood to prevent breakage.
  3. Crib hardware must have anti-loosening devices to keep it from coming loose or falling off.
  4. Mattress supports must be more durable.
  5. Safety testing must be more rigorous

Does this regulation apply to churches? Yes, if they sell or otherwise dispose of noncompliant cribs on or after June 28, 2011. This is so even if the church does not meet the definitions of a “child care facility” or “place of public accommodation,” since the regulations apply to any entity that sells, offers, provides for use, or otherwise places a crib in the stream of commerce regardless of its status as a child care facility or place of public accommodation.

Example. A church hasfour drop-side cribs in its nursery that are used during worship services. Church staff is aware of the new CPSC crib regulations and would like to voluntarily replace their noncompliant cribs with cribs that comply with the regulations. The church donates its four cribs to a small church that needs them. While the donor church is not a “child care facility” because it does not offer child care services for a fee (see below), it is subject to the new regulations as a result of its donation of the noncompliant cribs to the other church. The regulations prohibit any person to whom the CPSIA applies to ‘‘offer, provide for use, or otherwise place in the stream of commerce a crib that is not in compliance” with the new standards. The CPSIA states that it applies to any person that “distributes [cribs] in commerce,” and this is what the church did by donating its cribs to the other church. Note that donating the noncompliant cribs not only will violate the regulations, but also will expose the church to a risk of liability should a child be injured or killed in the donee church since the donation of noncompliant cribs could be viewed as negligence. In addition, if a jury determines that the church’s donation of noncompliant cribs constitutes gross negligence, this could result in punitive damages (not covered by the church’s general liability insurance policy) and may expose members of the church’s governing board to personal liability since state and federal laws immunizing uncompensated board members of nonprofit corporations do not apply to directors’ gross negligence.

If the sale or donation of noncompliant cribs violates the new regulations and exposes a church to civil liability, how should a church dispose of noncompliant cribs? The CPSC answers this question as follows: “All child care facilities, family child care homes, and places of public accommodation … must prepare to replace their current cribs with new, compliant cribs before December 28, 2012 [and] should not resell, donate or give away a crib that does not meet the new crib standards. … [They should] dispose of older, noncompliant cribs in a manner that the cribs cannot be reassembled and used. Noncompliant cribs should not be resold through online auction sites or donated to local thrift stores. CPSC recommends disassembling the crib before discarding it.”

If your church purchased a crib prior to the June 28, 2011, effective date and you are unsure if it meets the new federal standards, CPSC recommends that you verify that the crib meets the standards by asking for proof. Ask the manufacturer, retailer, or distributor to show a Certificate of Compliance. The document must:

Also, note that the crib must have a label attached with the date of manufacture, and this will help in determining if it was manufactured on or after June 28, 2011 (the date the new crib safety regulations took effect).

December 28, 2012 — Mandatory Replacement

Another key requirement of the new regulations takes effect on December 28, 2012. On and after that date any crib that is used by a child care facility must meet the new and improved federal safety standards. The law does not define the term “child care facility,” but the CPSC (which will enforce the new standards) has clarified that “we consider a child care facility to mean a nonresidential setting that provides child care services (which could include early learning opportunities) for a fee.” The CPSC website addresses the application of this definition to churches as follows: “The CPSIA does not provide any exclusion for churches. If a church operates a child care facility, the cribs that it provides must comply with CPSC’s crib standards.”

Given the language in the CPSIA, we consider a child care facility to be one that provides services for a fee. If volunteers take care of children during a church service without pay, we do not consider that arrangement to be a child care facility, and cribs used under such an arrangement would not be subject to CPSC’s crib standards.

This definition illustrates that a church child care facility subject to the new crib regulations is one that provides child care services for a fee. In addition, it clarifies that a church nursery that operates during worship services, that does not charge a fee for its services, and that does not compensate workers, is not a child care facility subject to the new regulations.

Example. A church has a child care center with 10 cribs that it operates each weekday. Parents pay a fee to enroll their children in the center, and the center is staffed by compensated employees. This facility meets both of the CPSC’s definitions of a “child care facility,” and so it must begin using compliant cribs no later than December 28, 2012.

Example. A church does not offer child care services to parents for a fee but does have four drop-side cribs in its nursery that are used during worship services and are staffed by uncompensated, volunteer workers. Since no fee is charged for nursery services, and workers are not compensated, the nursery would not be a “child care facility” under either of the CPSC definitions (quoted above) and cribs used under such an arrangement would not be subject to CPSC’s crib standards. However, the church is not off the hook. Its continued use of noncompliant cribs exposes it to a risk of liability should a child be injured or killed since the continued use of noncompliant cribs despite the CPSC’s widely publicized warnings could be viewed as negligence. In addition, if a jury determines that the church’s use of noncompliant cribs constitutes gross negligence, this could result in punitive damages (not covered by the church’s general liability insurance policy) and may expose members of the church’s governing board to personal liability since state and federal laws immunizing uncompensated board members of nonprofit corporations from personal liability do not apply to directors’ gross negligence.

Key point. Before and after the regulations prohibiting child care facilities from using noncompliant cribs take effect on December 28, 2012, parents will likely ask church staff questions regarding the church’s compliance with the new regulations. Obviously, informing parents that the church has decided to continue its use of noncompliant cribs because it does not offer child care for a fee and therefore does not meet the definition of a “child care facility” subject to the new regulations is not going to be a satisfactory response for most members. The same is true for parents visiting the church. Will they be attracted to the church or repelled by the church’s conscious and intentional decision to expose infants to risk as a means of saving the cost of voluntarily replacing noncompliant cribs?

The Risks of Noncompliance

Churches that continue to use noncompliant cribs face an array of risks, including the following:

A church’s general liability insurance policy may contain an exclusion barring coverage for claims resulting from deaths and injuries caused by a defective product.

It is important for church leaders to understand that all of these risks except the first one apply equally to churches that do not offer child care for a fee and therefore are not “child care facilities” subject to the new crib regulations. As a result, church leaders should not permit noncompliant cribs to be used in a church nursery or child care facility regardless of whether the church satisfies the definition of a child care facility. Churches that continue to use noncompliant cribs, both before and after December 28, 2012, not only are jeopardizing the health and life of infants, but are also exposing themselves, and potentially members of the church board, to substantial liability.

RICHARD R. HAMMAR, LL.M, CPA, serves as legal counsel to the Assemblies of God, and is editor of the Church Law and Tax Report newsletter. He has written more than 50 books on church legal and tax issues, including the third edition of Pastor, Church and Law.

This article is excerpted from Church Law & Tax Report, copyright 2011 Christianity Today International.

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