An employee approached me asking for time off due to “religious reasons.” We aren’t sure whether the employee has a religious reason for the time off. Do we have to accommodate the request because it is for “religious reasons”?
Both the federal Title VII of the Civil Rights Act of 1964 (Title VII) and California’s Fair Employment and Housing Act (FEHA) require employers to provide reasonable accommodation at the workplace for employees with sincerely held religious beliefs, observances or practices.
Determining whether an accommodation is needed, as well as whether a requested accommodation is reasonable, are factual inquiries that need to be made on a case-by-case basis.
Avoid Questioning Religious Belief
Both Title VII and FEHA define religious beliefs in this context to include all aspects of religious beliefs, observance and practice. Religion is not limited to practices mandated or prohibited by the employee’s faith or to traditional, organized religions.
Because the religious belief, observance or practice needs only to be sincerely held by the employee and is personal to the employee as it relates to their spirituality, employers generally are prohibited from inquiring into the religious nature of the employee’s beliefs.
Although the Equal Employment Opportunity Commission, the government agency that enforces Title VII, suggests an employer may question the belief, observance or practice if the employer has an objective basis to do so, this is a high burden for employers to meet. Before questioning any religious beliefs from employees, employers must contact legal counsel to discuss the risks.
Engage in Prompt, Good Faith Interactive Process
An employee requesting time off, or any other accommodation, for “religious reasons” doesn’t automatically oblige employers to provide the requested accommodation.
Employers may, and should, engage in the interactive process to learn more about how the employee’s religious belief, observance or practice interferes with the employee’s job requirements — in this case, the employee’s ability to be present during this requested leave.
Much like the interactive process with employees requesting accommodation due to a disability, the religious reasons process is unique to the facts and circumstances of each employee and should be conducted that way.
The interactive process should also be a collaborative and open process that allows the employee to fully explain their need for the accommodation while the employer fully explores what, if any, accommodation is necessary in this case.
Employers should always participate in the interactive process with an eye toward ensuring that the employee’s religious belief, observance or practice does conflict with a job duty, and if so, the most effective way to resolve that conflict. While going through the interactive process, the employer should document the entire process, start to finish.
Provide Reasonable Accommodation
Employees often will initiate the accommodation process by requesting a specific modification to their job duties, such as modified work schedules, removal of nonessential job duties or time off from work. Although the employer ultimately may provide the employee’s requested accommodation, the employer is not bound to do so.
When engaging in the interactive process, employers should learn the scope of the accommodation needed — for example, how much time off is actually needed for the religious belief, observance or practice. Sometimes, employees may request a full day, or a few days off for this purpose when in reality, the need is only for a few hours. In this case, the employer needs to provide only the necessary amount of time off.
Further, an employer is not required to provide an accommodation that would cause undue hardship for the employer. Federal and California law generally define “undue hardship” as an action that would result in substantial or significant difficulty or expense.
Courts at all levels have recognized this as a high burden for employers to prove, so employers should use this exception sparingly and in consultation with legal counsel.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
