Thursday, September 25, 2014

From the archives: Time off for religious holidays

Since today is both Rosh Hashanah and a work day, I though it appropriate to go deep into the archives, all the way to (yikes) 2008, to reprint a post discussing an employer’s obligations to an employee who asks for a day off to observe a religious holiday.

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation would pose an undue hardship if it would cause more than de minimis cost on the operation of the employer’s business. Factors relevant to undue hardship may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation.

Scheduling changes, voluntary substitutions, and shift swaps are all common accommodations for employees who need time off from work for a religious practice. It is typically considered an undue hardship to impose these changes on employees involuntarily. However, the reasonable accommodation requirement can often be satisfied without undue hardship where a volunteer with substantially similar qualifications is available to cover, either for a single absence or for an extended period of time.

In other words, permitting Jewish employees a day off for Rosh Hashanah may impose an undue hardship, depending on the nature of the work performed, the employee’s duties, and how many employees will need the time off. Employees can agree to move shifts around to cover for those who need the days off, but employers cannot force such scheduling changes.

In plain English, there might be ways around granting a day or two off for a Jewish employee to observe the High Holidays, but do you want to risk the inevitable lawsuit? For example, it will be difficult to assert that a day off creates an undue hardship if you have a history of permitting days off for medical reasons.

Legalities aside, however, this issue asks a larger question. What kind of employer do you want to be? Do you want to be a company that promotes tolerance or fosters exclusion? The former will help create the type of environment that not only mitigates against religious discrimination, but spills over into the type of behavior that helps prevent unlawful harassment and other liability issues.