Time Off Work for Religious Observances: What is Reasonable and What is Undue Hardship?

What do observant Orthodox Jews, Seventh-Day-Adventist Christians, and Muslims have in common? (And no, this is not the set-up for a punchline).

If they work for a living, then the answer is that — absent special circumstances — they often need to ask their employers for time off to observe the tenets of their faith. This may mean occasional requests for absences for religious holidays, weekly requests to work outside the Sabbath, or even daily requests to take breaks for prayer. But does an employer have to agree to these requests?  And does the denial of these requests amount to illegal religious discrimination?

As is the case with so much of employment law, the devil is in the details.

Under both the federal Title VII anti-discrimination statute, and the New Jersey Law Against Discrimination (the “NJLAD”), employers must allow employees time off for religious observances, as long as such accommodation is “reasonable” and does not impose an “undue hardship” upon the employer.

What is an “undue hardship”?

So what amounts to an “undue hardship” allowing an employer to refuse a request for religious observance? It all depends upon the specific facts of the case and the jurisdiction of the court. Generally speaking, federal law is more employer-friendly, due to a Supreme Court case that defined “undue hardship” as an accommodation that imposes just a “more than de minimus” — or minimal — burden on the employer’s operations.  

In contrast, the NJLAD and related caselaw defines undue hardship more severely to include “accommodations requiring unreasonable expense or difficulty,” that result in an employee being unable to perform the essential functions of his or her designated job, or that require “unreasonable interference with the safety or efficient operation of the workplace.”

Accordingly, NJ courts are likely to deem requests for religious observances “unreasonable” if they force the employer to hire replacement labor, suffer losses due to reduced productivity, or otherwise incur financial costs. With this in mind, employees seeking an accommodation for religious observances need to realize that they are not necessarily entitled to paid leave for such observances. Nor are they necessarily entitled to the exact accommodation of their choice.

What counts as a reasonable accommodation for religious reasons?

Instead, employees should accept accommodations that allow them to remain observant while minimizing the expense and disruption to the employer. Such accommodations may include:

• working extra early or late hours to make up for time off;
• taking unpaid leave for religious observances;
• exhausting paid leave (such as vacation leave or personal time off) for religious observances;
• swapping shifts with other employees to allow for religious observances.

With regard to shift-swapping, it’s important to note that courts view this accommodation as more “reasonable” when there is a larger pool of employees, and when the swap is voluntarily agreed to between employees (as opposed to unilaterally enforced by the employer). 

Moreover, a New Jersey federal court decision, Fouche v. New Jersey Transit Corp., ruled that a bus driver’s request to schedule his hours outside the Sabbath was “unreasonable,” given that the driver’s collective bargaining agreement stated that workers’ selection of schedules would be based upon seniority.  As such, the Fouche court held that the employer could not allow the driver to schedule his own hours without violating the union contract and stepping on the seniority rights of his co-workers.

Employers must make a “bona fide effort” to accommodate

Nonetheless, no matter whether an employee’s specific request is ultimately deemed “reasonable,” both federal and state law require that employers make a “bona fide effort” to accommodate the employee’s religious observances. This means that when an employee notifies her employer that her work schedule conflicts with her sincerely-held religious observances, the employer can’t just shrug and say, “too bad.” Your employer is obligated to engage in an interactive process that considers your request and the alternatives for fulfilling it.

How Should I Request a Religious Accommodation From My Employer?

Ideally, you should request a religious accommodation in writing.  This serves the important purpose of documenting your request should a conflict arise.  If you send your request via email, it is a good idea to use the “confirm receipt” function so that you have a record that your employer is aware of your need for an accommodation.

Give your employer appropriate notice of your request; if your workplace has policies for requesting leave in advance, them make sure you comply with them.  Above all, be open to alternatives and mindful of the impact your request for a religious accommodation has on your employer’s business operations, as well as your co-workers, particularly if you work with fellow union employees.  And as stated previously, remember that you may not be entitled to your preferred accommodation, especially if your employer’s business requires a minimum number of staff for certain hours. For example, a desk employee might request and receive the accommodation of beginning and leaving work early on Fridays so that he can observe the Sabbath.  In contrast, a store clerk or restaurant worker might have such a request denied and instead be made to swap shifts, simply due to the employer’s staffing needs during the busy evening hours.

Contact an NJ Employment Law Attorney Today

If you have a deeply-held need to observe your religious faith or practice and believe your employer is denying you an accommodation, call our offices today for a free consultation. We serve clients across New Jersey and New York, specializing in practice areas of improper actions based on race, gender, sex, sexual orientation, pregnancy, age, disability, wrongful termination, workplace retaliation, wage and hour disputes, and more.