03/27/2020

Exposed Family Members of COVID-19 Decedents

Now that Michigan is experiencing an escalating number of COVID-19 deaths (60 as of this writing, and Detroit was mentioned as a "hot spot" this morning by the U.S. Surgeon General), an issue that has arisen with increasing frequency is dealing with family members who were exposed to the COVID-19 decedent.

In such cases, the funeral director should gently request that those who are ill stay home from the arrangements conference or join in the discussions by teleconference. The funeral director can then encourage the individual(s) making arrangements to either delay services to allow the exposed family members to self-quarantine for 14 days in keeping with the Centers for Disease Control and Prevention's ("CDC") guideline, or discuss webcasting options to allow those who cannot physically attend to participate.

If they refuse, and wish to proceed with a service of some kind, the question raised is: may the funeral director refuse to conduct services in order to protect the health and safety of its employees and other mourners? Or, to put it another way, is someone infected with COVID-19 subject to the same legal protections under the federal American's with Disabilities Act ("ADA"), as someone who has contracted AIDS, for example? MFDA has consulted with NFDA General Counsel Scott Gilligan on this question. Scott pointed out that the EEOC has stated that if the infected person is suffering flu-like symptoms, it should not be considered a disability because it is not a permanent or long-lasting impairment. Furthermore, in his view, the funeral home can claim that being required to offer services to family members who currently are infectious with COVID-19 imposes a health and safety risk to staff and other attendees. So he believes the funeral home would not be violating the ADA in refusing to provide services to a family that insists that infectious family members be present. This is true even if the family member has not yet been tested, or exhibiting symptoms, as the current CDC guidelines recommend that anyone who was exposed to the virus self-quarantine for 14 days following the date of exposure.

MFDA will continue to keep you apprised of developments and guidance on this rapidly unfolding pandemic.