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CLIENT ALERT

April, 2007

ACCOMMODATING EMPLOYEES’ RELIGIOUS BELIEFS

     Effective January 13, 2008, the New Jersey Legislature amended the Law Against Discrimination to require employers to accommodate their employees’ sincerely held religious beliefs, unless doing so would result in an undue hardship to the employer. The law now prevents an employer from forcing an employee to forego a “sincerely held religious practice or religious observance” such as a holy day or Sabbath. An employer is not required to grant the request for time off or otherwise accommodate the employee’s religious observance if doing so would result in an “undue hardship to the employer.” The employer can establish ‘undue hardship’ if it can establish that the granting of the accommodation will:

1. Render the employee unable to perform the essential functions of his or her position;
    
2. Require unreasonable expense or difficulty;
    
3. Interfere with the safe or efficient operation of the workplace;
    
4. Require a violation of a seniority system; or
    
5. Require a violation of a Collective Bargaining Agreement.

     In determining whether an accommodation is an undue hardship, the employer should consider the number of employees who require the accommodation. For example, if the number of employees who will require an accommodation is significant enough to interfere with the employer’s ability to operate its business, this would be a good indication of ‘undue hardship.’ Conversely, if only one employee out of several employees of similar skills will be absent due to religious observance, it will be difficult for the employer to establish ‘undue hardship.’ In addition, the cost of the accommodation will also be considered.

     Employers with multiple facilities should consider the degree to which the separateness or connectedness of the facilities makes the accommodation difficult or expensive. The geographic location, as well as the administrative and fiscal relationships between the facilities may make the accommodation difficult or expensive.

     If an employee takes time off for a religious reason, the employer may, if practicable, require the employee to make up the time. The employer may also count the time as paid leave, other than sick leave. If the time off is not made up or is not counted as paid leave, for example when the employee has already used up all accrued vacation and other paid leave, the time off may be counted as unpaid leave.

     If the employee makes up the time off for the religious observance and that make up time occurs during hours that would otherwise entitle the employee to premium pay and benefits, such as a weekend or holiday, the employee is generally not entitled to premium pay and benefits because the employee chose to make up the time on such a day. However, the employer’s overtime pay obligations remain unchanged under the amendment.

     The practical implications of the amendment are uncertain. For example, the amendment does not provide guidance on the issue of whether the employer may question the ‘sincerity’ of the religious belief. It does not indicate whether the employer may refuse to accommodate a request in the event the employer perceives the employee’s belief to be insincere. Whether someone’s belief is sincere is subjective and most likely will be judged from the perspective of the employee.

     What is certain, however, is that the amendment imposes a heavier burden on employers than the burden imposed by federal law. Under federal law, a religious practice need not be accommodated if the accommodation would represent more than a minimal burden on the employer. It is unquestionably more difficult for an employer to establish that the burden imposed by accommodating the employee’s request to observe a religious holiday imposes an ‘undue hardship’ than it is for the employer to establish that the burden is more than minimal.

     In light of the greater burden imposed by New Jersey law, New Jersey employers should review the factors carefully and consult with legal counsel.

     This Laddey, Clark & Ryan, LLP Client Alert provides information of general interest to our readers. It is not intended, and should not be used, as a substitute for consultation with legal counsel. If you have any questions regarding specific issues raised in this Employer Alert, you may contact Thomas Ryan, Esq. or Linda Day, Esq. of Laddey, Clark & Ryan’s Employment and Labor Practice Group at (973)729-1880.

The Employment and Labor Practice Group

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