Dear WFDA Members:

Last Tuesday, March 17, Gov. Evers and the Wis. Dept. of Health Services issued a public Health Order that limited gatherings to 9 people or less in a room or enclosed area.  Part of that Order also required “social distancing” of six feet between persons.  Portions of that Order remain in effect even though the Governor and the DHS have issued a new Order (Emergency Order #12- Safer At Home Order).  The new “Safer At Home Order” is much more comprehensive and goes into full effect at 8:00am on Wednesday, March 25 and remains in effect until Friday, April 24 or until a superseding Order is issued.

Very happily for Wisconsin funeral service practitioners and funeral establishments, the Order has a carve-out for funerals and funeral directors.  I want to thank WFDA’s lobbyist Tom Moore for his work at the Capitol  making sure that our concerns- as funeral directors- were specifically addressed.  There are four specific parts of the Safer At Home Order that I want to call WFDA’s members’ attention to:

1. Essential Businesses and Operations at Paragraph 13a:  CISA is the federal Cybersecurity & Infrastructure Security Agency.  CISA has issued several memos and guidelines over the last few weeks, and especially last week Wednesday, March 18 (updated on March 23) when CISA noted that funeral home, mortuary, and cemetery workers were considered “essential” and therefore should be exempt from travel bans or curfews.  The CISA memo was not legally binding, but did carry great advisory weight.  The Safer At Home Order adopts the list of CISA businesses and workers  as being considered “essential” under Wisconsin law.  As such, funeral directors are essential workers under the new Safer At Home Order.  Funeral directors are still required to practice social distancing “to the extent possible.”

1. Weddings, funerals, and religious entities at Paragraph 13h: Funerals are NOT exempt from the prohibition on “mass gatherings” which are defined as a “gathering of ten or more people.”  This stated a church or a funeral home may have services so long as there are fewer than 10 people in a room or otherwise confined space.  Social distancing of at least six feet between persons is required “as much as possible.”  If a church had a separate fellowship hall, there could be 9 people in the church proper, and nine people in the fellowship hall with a piped-in video feed so long as social distancing is maintained.

1. Funeral establishments at Paragraph 13i:  funeral establishments (i.e. your funeral home or funeral chapel) may have a gathering of less than ten people in a room or confined space so long as the six feet of social distancing is adhered to “as much as possible.”  If you have two completely separate chapels, you could have nine people in one and nine in the other so long as social distancing is maintained.

1. Essential Travel at Paragraph 15:  Funeral directors, as essential employees, are generally exempt from any travel bans so long as the travel is related to the provision of an essential service (in our case- funeral directing and the activities that are required to support funeral directing).  I strongly encourage funeral directors to keep their licenses on them at all times should they need to exhibit such to law enforcement officials

Naturally, there are many questions and I have been doing my best over the last week to answer those questions for our WFDA members.  Four of the most commonly asked questions are:

1. Does the “mass gathering” limit of less than ten people apply to cemeteries?  It would appear that it does not.  The “mass gathering” prohibitions all contemplate a single “room” or a “confined space” and a cemetery is neither.  [I would note that an indoor mausoleum would be a confined space.]  Social distancing still applies to any outdoor activity in any case.  As such, it would appear that one could have more than 9 people at a graveside service so long as the six feet of social distancing is maintained.  I admit that this would be a strange way to have a graveside service, but I leave it to your creativity.  I strongly suggest that you not have a tent or chairs present as this would invite people to break the social distancing requirement.   I do note that a large cemetery service may be a bit of a loophole as the entire idea of the Order is to minimize the spread of COVID-19, and a large gathering in a cemetery- even if social distancing is maintained- does not fulfill the spirit of the law even if it fulfills the black letter of the law.  That is a business and PR decision for each funeral firm to make.

2. Can I “cycle” people in and out of the chapel so long as there are no more than 9 in the chapel at a time?  It would appear that yes, you can.  I again note that the purpose of the Safer At Home Order is to slow the spread of COVID-19 and therefore cycling people in and out of a chapel or church may comply with the black letter of the law but does not comply with the spirit of the law as the viral pathogen would be left behind as a residual in the air from multiple people respirating in a given space.  

3. Does the new Order apply to churches?  Yes, it does.  I am aware of several clergy claiming that the government’s rules do not apply to churches under the idea of “separation of church and state.”  This is false.  The Order applies to churches, which may have nine or fewer people attend a service in a room or confined space so long as they practice social distancing.

4. Do funeral home employees count towards the nine people?  Yes, if they are in the same room or confined area.  If they are not in the same room or confined area, then no, they do not count.  For example, An embalmer working in the prep room would not count toward the nine people limit because he or she is in a different room than those in the chapel. 

I want to wish you all the best of luck as we navigate the legal, social, health, and economic issues that this situation has presented while still serving your families and the community with the dignity you have always displayed.  Please feel free to call or email me if you have any questions or concerns.  WFDA is here to help you, and we appreciate your membership.  Take care, my friends!

Respectfully,

Michael D. Sharkey, Esq.

WFDA General Counsel

(952) 334-4460

msharkey@cvmmlaw.com