Employers sometimes struggle with an increase in religion vs. work conflicts during the holiday season. To resolve these conflicts, often related to scheduling, employers may be required to provide reasonable accommodations pursuant to federal and/or state law. An accommodation is an exception to certain policies or a change in the work environment or the way work is typically done. To help you better understand your responsibilities, we dispel several myths about religious accommodations.
Myth #1: Only large employers must provide reasonable accommodations.
Fact: Title VII of the Civil Rights Act ("Title VII") requires employers with 15 or more employees to provide reasonable accommodations for employees' sincerely held religious beliefs or practices, unless it would cause an undue hardship. Many states have similar laws, some of which cover smaller employers.
Myth #2: An employee must specifically ask for a "reasonable accommodation" to be entitled to one.
Fact: Employees aren't required to use the term "reasonable accommodation" to be entitled to one. However, an employee must make the employer aware that they need an accommodation due to a conflict between religion and work. If you receive such notice, promptly begin an "interactive process," or dialogue, with the employee to identify what, if any, reasonable accommodation should be provided. After implementing an accommodation, check in with the employee to ensure that it's effective. Remember to document each step of the process.
Myth #3: The definition of "undue hardship" for religious accommodations is the same as the one for providing reasonable accommodations for disabilities.
Fact: Under federal law, an employer must demonstrate that the religious accommodation would require more than de minimis cost to establish undue hardship. This is a different standard than the one for disabilities, which is "significant difficulty or expense." To determine whether an undue hardship exists for religious accommodations, assess factors such as 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 need a particular accommodation. Note: If an employee's proposed accommodation would pose an undue hardship, the employer should explore alternative accommodations.
Myth #4: Unpaid leave for religious observances is not considered a reasonable accommodation.
Fact: Absent an undue hardship, paid or unpaid leave for religious observances can be a reasonable accommodation. Other examples of reasonable accommodations may include:
- Exceptions to dress codes
- Additional breaks for religious practices, such as prayer
- Use of the work facility for a religious observance, such as a quiet space for prayer
Myth #5: If an applicant wears a head scarf or other head covering to an interview, and the employer's dress code doesn't permit hats, the employer should ask if the head covering is for religious reasons.
Fact: Employers shouldn't ask applicants directly if they are wearing certain attire for religious reasons. However, interviewers should be familiar with the company's dress code (or any other policy that might call for a religious accommodation) and be ready to ask applicants if they can comply, with or without a reasonable accommodation. This question can spark a discussion over possible accommodations, if applicable. Note: If you do ask this question, be consistent and ask it of all applicants.
Myth #6: During the interview process, employers should ask applicants what day they observe the Sabbath and which religious holidays they observe so they can schedule accordingly.
Fact: During the interview process, avoid questions that elicit information about religious beliefs and practices. If you want to confirm an applicant is able to work the hours required for the job, state the regular days, hours, or shifts and ask whether the candidate can work such a schedule. Be consistent and ask this question of all applicants for the position.
Myth #7: Employers must always provide the employee's preferred accommodation.
Fact: While an employer should consider the employee's proposal, the employer isn't required to provide that specific accommodation if there is another effective alternative available. Keep in mind that the accommodation provided must effectively eliminate the conflict between the employee's religion and work without causing an undue hardship on the business. Document all accommodation options, including the ones not chosen and the reasons why not.
Myth #8: If a religious practice deviates from commonly followed religious beliefs, employers don't have to provide a reasonable accommodation.
Fact: Just because a practice deviates from commonly followed religious beliefs doesn't mean it isn't protected. Generally, employers should assume that an employee's request is based on a sincerely held religious belief and they should engage in the interactive process. However, if an employer has objective factors that might call into question an employee's sincerity (such as inconsistent behavior, timing of the request, or similar past requests made for secular reasons), they should seek legal counsel to discuss how to address the concerns.
Myth #9: Atheists aren't entitled to religious accommodations.
Fact: All covered employees are entitled to a reasonable accommodation for their sincerely held religious beliefs or practices, unless it would be an undue hardship on the employer. For an atheist, a reasonable accommodation may include being excused from company holiday parties or being excused from a religious invocation at the beginning of staff meetings.
Myth #10: If an employee asks to change shifts because their regular shift would conflict with their religious practices, the employer must force another employee to swap shifts.
Fact: An involuntary shift swap isn't generally considered a reasonable accommodation. However, you must make a good faith effort to allow voluntary shift changes. Consider ways you can facilitate and encourage voluntary shift changes among employees with similar qualifications.
Understand your obligations for providing religious accommodations, train supervisors on how to identify and respond to accommodation requests, and handle each request on a case-by-case basis.