It should be no surprise that the novel coronavirus disease (COVID-19) pandemic has had a tremendous impact on today’s employees’ thoughts on life, work, and workplace rules. A recent Harvard Business Review article describes one question that employees are pondering – Is it time to bring my “whole self” or “true self” to work?
According to the article, “No matter how much we’ve tried to hide the ‘other side’ of ourselves from our colleagues, COVID-19 has essentially given us no shelter. Aside from essential workers fighting the pandemic on the front lines, many of us are working at home—from weather forecasters and news anchors, to the cast of SNL, to the CEOs of the world’s largest companies. Did you ever think you’d get to see a corner of Stephen Colbert’s home office? I certainly didn’t.”
The article further notes, “This new normal of working from our homes has merged so much more than just our ‘parent’ and ‘employee’ identities, though, because all of us are far more nuanced than that. I’m not just ‘Work Carrie’ and ‘Home Carrie.’ I’m a CEO, a mentor, a wife, a mother, and a daughter, too. (And most recently, a teacher, chef, and birthday party planner.) We’ve been forced to reveal all of our layers, and as scary as that seemed for so long, it’s actually been, in my opinion, a major turning point.”
As we have already seen in the contexts of vaccine mandates, and even mask requirements, employees bringing their “whole self” to work and to the job site may now include more situations where they seek exceptions to workplace expectations or requirements based upon their personal religious beliefs. Here are some examples outside the COVID-19 context:
- A Catholic employee requests a schedule change to attend church services on Good Friday.
- A Muslim employee requests an exception to the dress code allowing her to wear her headscarf or hijab.
- An adherent to Native American spiritual beliefs seeks time off to attend a ritual ceremony.
While many employers may already be familiar with navigating such requests when requested on the basis of an employee’s disability or pregnancy, which also trigger strict obligations under the law, they may be less aware of how to handle requests in this context. That is also because until recently, religious accommodations were less common and as a result, there is less published guidance to rely on.
To help avoid running into a knotty situation, let’s review the basics.
When May an Employee be Entitled to Religious Accommodation?
Title VII of the Civil Rights Act of 1964, and similar state and local laws, requires employers to “reasonably accommodate” employees who request to be exempt or excepted from certain workplace requirements because of a sincerely held religious belief, practice, or observance that prevents them from doing so, provided that doing so does not pose an undue hardship to operations of the business. What that means in practice is that once an employer is notified or otherwise has reason to be aware that an employee is unable to meet a job requirement for what may be religious reasons, the employer needs to engage in a process to carefully evaluate (1) if the employee is entitled to the requested exception and if so (2) whether and to what extent it can be accommodated.
What is a Religious Belief?
While it may seem like a simple question, employers can get into trouble if they assume that this means only those who gather in churches, synagogues, and mosques can trigger this protection, or that they should automatically ask for a letter from a pastor to justify the request. Instead, this is a broadly defined term to include any theistic or non-theistic belief system that addresses fundamental questions of existence and morality. A religion does not need to be traditional, old, logical, or formally organized, and the individual believer’s belief, observance, and practice need not be officially recognized by any particular organized religion. However, personal preferences and political, social, and cultural philosophies do not qualify as sincerely held religious beliefs.
Sincerity is subjective, which means that in most circumstances, an employer should presume the employee’s belief is sincerely held. Indeed, guidance from the U.S. Equal Employment Opportunity Commission explains that an employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance unless they have objective reasons to question it. For example, if the employee has taken prior actions markedly inconsistent with a professed belief, or there is another reason to believe the accommodation is not sought for religious reasons. If so, an employer may be permitted to seek additional information to determine whether the employee has a sincerely held religious belief, and the employee is obligated to cooperate or can lose their entitlement to protections. Employers should keep in mind, however, that no one factor alone will answer the question, and that an individual’s beliefs, like other aspects of their life, can change over time and warrant accommodation.
When Does a Religious Accommodation Pose an “Undue Hardship?”
Under Title VII, an accommodation would pose an undue hardship if it would cause more than de minimis, or minimal, cost on the operation of the employer’s business or operations. In the event of a challenge, though, the burden is on the employer to demonstrate how much cost, burden, or disruption a proposed accommodation would involve.
The following factors are relevant to this analysis:
- the type of workplace or jobsite
- the nature of the employee’s duties
- the identifiable costs in relation to the business’ size and operating costs
- the number of employees who may require accommodation
- increased risk of harm to the employee or others
- increased burden on other employees
- conflict with union seniority rules
What are Common Methods of Religious Accommodation in the Workplace?
Potential accommodations in this context include:
- scheduling changes, voluntary substitutes, and shift swaps
- changing an employee’s job tasks or providing a lateral transfer
- making an exception to dress and grooming rules
- use of the work facility for a religious observance
- adjustments to set break times at the jobsite for time-specific prayers
While there are multiple ways for employers to properly navigate religious accommodations, the following best practices stand out:
- Update workplace policies to provide a clear process for requesting religious accommodation. Consider creating forms to help ensure that the necessary information, but not more than may be required, is provided by the employee.
- Develop an internal process for evaluating and responding to requests, including inclusive messaging, non-combative correspondence and productive dialogues (whether in person, over Zoom, or over email) with employees who request accommodations.
- Provide appropriate training for the employer’s key players.
Involve qualified legal counsel in process development, assistance with communications, and particularly before denying a requested accommodation.
The legal issues impacting workplaces are ever changing (Employment Law in Motion!) and since publication, new or additional information not referenced in this blog post may be available. Employers should feel free to call on the Miller Nash team if you have questions or need assistance, and always consult with an attorney for legal guidance.