British Mosques Cannot Waive Their Responsibilities to COVID-19 Volunteers or Employees
These have been a difficult few weeks, and testing times for many in the Muslim communities as we have lost loved ones and friends to the coronavirus. It is understandable that grief-stricken families would want to see their dear, departed ones enjoy the dignity of a full Islamic burial with all its rites and particulars. It is therefore unsurprising that there has been a big push within the Muslim community for volunteers to cope with the rising COVID-19 death toll that is affecting BAME communities disproportionately (which make up a large majority of Muslim communities too). A recent survey found that more than a third of all COVID-19 patients in intensive care were from BAME communities, who in the last census made up 14% of the population.[1]
There isn’t really a fiqhi difference as such over this issue: no UK religious scholar is arguing that fulfilling funeral rites should be done at all costs, including at the cost of the health and possibly even the lives of those who are officiating, either as volunteers or as employees. Rather, what divides them is their assessment of the risk and how best to ameliorate it. In brief, the medical evidence we have so far says that the COVID-19 infection risk from living to living is higher than from the deceased to the living; nonetheless the risk from the latter, according to the government, is “small but real”.[2] But risk assessment must also be based on the competence and compliance of Muslim institutions, the employees and volunteers they deploy, and the risks and harms to members of the public whom they serve and interact with.
Mosques are nearly all charities and as such are governed by charity law. They are also public institutions and so come under public liability law too. If we are talking about the employees or volunteers of Muslim funeral service providers, if registered as limited companies, they are governed by employer liability law. As such, both mosque charities and limited companies providing Muslim funeral services will need to ensure that their handling of COVID-19 victims is fully compliant with their legal obligations. There are many considerations here, not least the agreement of one’s public liability insurers. For more detailed, preliminary and generic advice, see this instructional video from a concerned and well-informed Muslim lawyer — as a first step.[3]
However, we should not be blind to any sharp practice or corner cutting that is going on out there. Over the weekend, a proforma wavier produced for mosques in a Northern city was sent to me on condition that I redact the name of the town, which is why it has been blocked out (see above). This waiver attempts to set aside all legal responsibilities. The key paragraph is here:
I assume any and all risks for injury to my person or property, or any other consequence arising out of my assisting in, participating in, or volunteering in the Event, including travel en-route to and from the Events. I am aware that as a volunteer I fully expose myself to potential infectious hazards which include but are not limited to: infectious diseases, viruses, cuts, burns or back/leg/shoulder injury from lifting, property damage or injury to others, falls/slips/trips etc. The potential hazards have been explained to me and I understand them. I HEREBY WAIVE AND RELEASE MY LEGAL RIGHTS TO SUE FOR ANY TYPE OF INJURY/DEATH OR OTHER DAMAGE ARISING OUT OF OR RESULTING FROM MY VOLUNTEERING.[4]
I have consulted with two lawyers about this document, who specialise in charity law. They said that while it was clearly written by a lawyer, it was against professional standards not to put the name of their firm to it. They also observed that it was wrongly trying to diminish risk on the basis of legislation drafted for the use of sports equipment and the like by gyms, sports centres, etc. in order to limit occupiers’ liability. But this legislation is not applicable in the midst of a public health crisis such as COVID-19, rather health and safety, charity, public liability, and employment laws are more germane, and thus waivers of this kind will not afford legal protection for any mosque (or funeral service registered as a limited company) deploying it.
This is leaving aside the whole matter of the questionable Islamic ethics of the matter, viz., that some mosques might be prepared to see the health of volunteers as an expendable asset in the performance of funeral rites, or worse, yet accept no responsibility for it. There is no sense of duty of care in the above document.
I hope that our learned scholars will step forward and clarify that such waivers are morally repugnant and should not be resorted to by mosques or limited companies offering funeral services to COVID-19 victims.
Notes
All URLs were live and as presented when accessed on 14 March 2020; they may be subsequently altered or deleted by the creators or editors of those URLs.
[1] H. Siddique, “UK go“vernment urged to investigate coronavirus deaths of BAME doctors”, Guardian, 10 April 2020, https://www.theguardian.com/society/2020/apr/10/uk-coronavirus-deaths-bame-doctors-bma?CMP=share_btn_fb.
[2] See Y. Birt, “Mosque Trustees: Consider Your Legal Liabilities Before You Open Your Mosque to Ghusl Services for COVID-19 Victims”, Medium, 5 April 2020, https://medium.com/@yahyabirt/mosque-trustees-consider-your-legal-liabilities-before-you-open-your-mosque-to-ghusl-services-for-974c8d345fd1.
[3] N. Hafezi, “COVID-19 BURIAL PREPARATIONS IN MASJIDS
10 IMPORTANT LEGAL QUESTIONS FOR TRUSTEES”, Facebook [Video], 13 April 2020, https://www.facebook.com/nasir.hafezi.3/videos/218134686084891/?d=n.
[4] See at the top of the article.
