This article was written by Keisha-Ann G. Gray
Question: We employ people of many different religious faiths. With a lot of religious holidays coming up, are we as employers required to give our employees days off for their religious holidays? If so, do we have to give them paid time off?
Answer: Employees often request days off for religious observances/holidays. Although there is no federal law that requires an employer to give employees days off for religious holidays, employers may not treat employees more or less favorably because of their religion affiliations, and employees cannot be required to participate or refrain from participating in religious activity as a condition of employment. Specifically, under Title VII of the Civil Rights Act of 1964 ("Title VII"), employers have an affirmative duty to provide a reasonable accommodation to employees for religious observances, such as requesting a day off to observe a religious holiday, unless the employer can demonstrate that providing such a reasonable accommodation would result in an "undue hardship" on the employer. 42 U.S.C. § 2000e(j). Title VII prohibits employers from discriminating against employees on the basis of religion. 42 U.S.C. § 2000e-2)(a). Title VII defines "religion" as "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business."42 U.S.C. § 2000e(j). Many states and local laws also include requirements for employers to provide a reasonable accommodation for employees' religious observance.
Reasonable Accommodation for Religious Holidays
The Equal Employment Opportunity Commission defines "reasonable accommodation" as "[a]ny adjustment to the work environment that will allow the employee to comply with his or her religious beliefs."See EEOC Compliance Manual, "Section 12: Religious Discrimination," at 46. However, a reasonable accommodation is "subject to the limit of more than de minimis cost or burden." Id. First, an employee must notify his or her employer regarding a request for a day off for religious observance for the employer to recognize that the religious observance will conflict with work. The EEOC has recognized that an employee's need for an accommodation frequently arises as related to work schedule, and the "[e]mployer's duty to accommodate will usually entail making a special exception from, or adjustment to, the particular requirement so that the employee or applicant will be able to practice his or her religion." See EEOC Compliance Manual, at 46. The EEOC Guidelines ("Guidelines") provide examples of methods employers may use to accommodate employees' religious observances as related to work schedule. 29 C.F.R. § 1605.2(d). Some examples include:
*"Volunteer Substitutes and Swaps -- reasonable accommodation without undue hardship is generally possible where a voluntary substitute with substantially similar qualifications is available. . .the Commission believes that the obligation to accommodate requires that employers and labor organizations facilitate the securing of a voluntary substitute with substantially similar qualifications."29 C.F.R. § 1605.2(d)(i).
*"Flexible Scheduling -- . . .[t]he following list is an example of areas in which flexibility might be introduced: flexible arrival and departure times; floating or optional holidays; flexible work breaks; use of lunch time in exchange for early departure; staggered work hours; and permitting an employee to make up time lost due to the observance of religious practices."29 C.F.R. § 1605.2(d)(ii).
An accommodation will not be considered "reasonable" if it "merely lessens rather than eliminates the conflict between religion and work" unless the employer can demonstrate that eliminating the conflict would result in an undue burden. See EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1997) (employer who refused to grant employees' request for day off on Yom Kippur, but offered other day off instead, failed to provide a reasonable accommodation because accommodation would not eliminate the conflict between the employees' religious beliefs and their duties). Ultimately, reasonableness is a fact-specific determination. EEOC Compliance Manual, at 53.
"A refusal to accommodate is justified only when an employer or labor organization can demonstrate that an undue hardship would in fact result from each available alternative method of accommodation. A mere assumption that many more people, with the same religious practices as the person being accommodated, may also need accommodation is not evidence of an undue hardship." 29 C.F.R. § 1605.2(c)(1). In very limited circumstances, employers have been able to demonstrate the existence of an undue burden that would excuse it from providing a "reasonable" accommodation/day off for a religious holiday. Indeed, to demonstrate an undue hardship, an employer must show "more than de minimis cost or burden." See, e.g., EEOC v. BJ Servs. Co., 921 F. Supp. 1509 (N.D. Tex. 1995) (finding that employer demonstrated an undue burden by showing that cost of employee's requested accommodation to take a day off for religious observance was more than de minimis when it required co-workers to assume plaintiff's share of the hazardous work); compare Opuku-Boateng v. California, 95 F.3d 1461 (9th Cir. 1996) (finding that complaints by employee's co-workers did not establish an undue hardship on the employer, and employer failed to reasonably accommodate employee's religious observance where employee offered to switch schedule as employer did not demonstrate hardship on other employees or more than de minimis cost).
In New York, for example, the recent enactment of the NYC Workplace Religious Freedom Act in 2011 makes it much more difficult for an employer to demonstrate undue hardship resulting from requests for religious accommodations. NYC employees, in particular, must show more than a de minimis expense in order to avoid being required to provide religious accommodations.
Religious Holidays and Pay
Granting an employee time off for religious observance, with or without pay, is a form of reasonable accommodation. Employers are not required to give employees paid time off for religious observance. Specifically, pursuant to the Fair Labor Standards Act (29 U.S.C. 201 , et seq.), an employer is not required to pay non-exempt (hourly) employees for time off on a holiday. An employer is only required to pay hourly employees for time actually worked. On the other hand, exempt employees (salaried employees who do not receive overtime), who are given the day off, must be paid their full weekly salary if they work any hours during the week in which the holiday falls.
Normally, simply giving hourly employees the day off without pay will usually suffice as a reasonable accommodation. Courts have found that employers were not acting unreasonably if they gave the employee time off for religious observances, however, refused to compensate the employee for such time off. For example, in Ansonia Bd. Of Educ. v. Philbrook et al, 479 U.S. 60, 70 (1986), the Supreme Court found that a school board policy requiring a teacher to take unpaid leave for a holy day observance that exceeded the amount allowed by his collective-bargaining agreement constituted a reasonable accommodation. 47 U.S. 60, 70 (1986) ("The provision of unpaid leave eliminates the conflict between employment requirements and religious practices by allowing the individual to observe fully religious holy days and requires him only to give up compensation for a day that he did not in fact work."). However, employers must be aware that unpaid leave for days off cannot be discriminatorily applied, and "[u]npaid leave is not a reasonable accommodation when paid leave is provided for all purposes except religious ones." Id. at 71.
Therefore, although Title VII does not require that the employer accommodate an employee's religious practices in a way that spares the employee any cost whatsoever, employers should strive to reasonably accommodate employees' requests for days off for religious holidays, unless they can demonstrate an undue burden.
Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.