Accepting religious beliefs in a ‘post-pandemic’ workplace • Daily Journal of Commerce

Accepting Religious Beliefs in a “Post-Pandemic” Workplace

By Amy A. Robinson and Iván Resendiz Gutierrez, Miller Nash LLP

Amy A. Robinson

It’s no surprise that the novel coronavirus disease (COVID-19) pandemic has had a huge impact on the thoughts of today’s employees about life, work, and workplace rules. A recent Harvard Business Review article describes a question employees are asking: Is it time to bring my “whole self” or my “real self” to work?

According to the article, “No matter how hard we tried to hide the ‘other side’ of ourselves from our colleagues, COVID-19 essentially did not provide us with shelter. Along with the essential workers battling the pandemic on the front lines, many of us are working from home — from weather forecasters and news anchors, to SNL cast members, to the CEOs of the world’s biggest companies. Did you ever think you’d see a corner of Stephen Colbert’s home office? I certainly didn’t.

Ivan Resendiz Gutierrez

The article further notes, “This new normal of working from home has merged much more than our ‘parent’ and ’employee’ identities, as we are all much more nuanced than that. I’m not just “Work Carrie” and “Home Carrie”. I am CEO, mentor, wife, mother and daughter too. (And most recently, a teacher, chef, and birthday party planner.) We’ve been forced to reveal all of our layers, and as scary as that has seemed for so long, it actually has, in my opinion. , a major turning point. .” (https://hbr.org/2020/07/parents-bring-your-whole-self-to-work)

As we have already seen in the contexts of vaccination mandates, and even mask requirements, employees who bring their “whole” to work and to the job site can now include more situations where they ask for exceptions to expectations. or workplace requirements based on their personal religion. beliefs. Here are some examples:

  • A Catholic employee requests a schedule change to attend Good Friday church services.
  • A Muslim employee asks for an exemption from the dress code allowing her to wear her headscarf or hijab.
  • A follower of Native American spiritual beliefs requests time off to attend a ritual ceremony.

Although many employers already know how to handle such requests when they are made on the basis of an employee’s disability or pregnancy, which also trigger strict obligations under the law, they may be less aware of how to deal with requests in this context. This is also because until recently, religious accommodations were less common and therefore there are fewer published guidelines to rely on.

To avoid falling into an awkward situation, let’s go over the basics.

When can an employee be entitled to religious accommodation?
Title VII of the Civil Rights Act of 1964 and similar state and local laws require employers to “reasonably accommodate” employees who request to be exempted or excepted from certain workplace requirements because of a creed, of a sincere religious practice or observance that prevents prevent it from doing so, provided it does not unduly harm the operations of the company. In practice, this means that once an employer is made aware or has reason to know that an employee is unable to meet an employment requirement for what may be religious reasons, the employer must Engage in a process to carefully assess (1) whether the employee is entitled to the requested exception and if so (2) whether and to what extent it can be accommodated.

What is a religious belief?
While this may seem like a simple question, employers can get in trouble if they assume this means that only those who congregate in churches, synagogues and mosques can trigger this protection, or that they should automatically request a letter from a pastor to justify the request. Instead, it is a term broadly defined to include any theistic or non-theistic belief system that addresses fundamental questions of existence and morality. A religion need not be traditional, ancient, logical, or formally organized, and the belief, observance, and practice of the individual believer need not be officially recognized by any particular organized religion. However, personal preferences and political, social and cultural philosophies are not considered sincere religious beliefs.

Sincerity is subjective, which means that in most cases an employer should assume that the employee’s belief is sincere. Indeed, the U.S. Equal Employment Opportunity Commission guidelines explain that an employer should normally assume that an employee’s request for religious accommodation is based on a belief, practice, or observance. sincere religious, unless he has objective reasons to question it. For example, if the employee has taken prior actions that are clearly inconsistent with a held belief, or if there is another reason to believe that the accommodation is not being sought for religious reasons. If so, an employer may be permitted to request additional information to determine whether the employee has an honest religious belief, and the employee is obligated to cooperate or may lose their right to protections. Employers should, however, keep in mind that no single factor is determinative and should be careful when assessing the sincerity of an employee’s belief, as courts have recognized that an individual’s beliefs, such as Other aspects of his life may change over time.

When does a religious accommodation pose “undue hardship?” »
Under Title VII, an accommodation would pose an undue hardship if it resulted in more than minimal or minimal cost to the carrying on of the employer’s business or operations. In the event of a dispute, however, the onus is on the employer to demonstrate the cost, burden or disruption that a proposed accommodation would cause.

The following factors are relevant to this analysis:

  • the type of workplace or construction site
  • the nature of the employee’s duties
  • identifiable costs in relation to business size and operating costs
  • the number of employees who may require accommodation
  • increased risk of harm to the employee or others
  • increased burden on other employees
  • conflict with union seniority rules

What are common methods of religious accommodation in the workplace?
Potential accommodations in this context include:

  • schedule changes, voluntary replacements and shift swaps
  • modify an employee’s duties or provide a lateral transfer
  • make an exception to dress and grooming rules
  • use of the work facility for religious practice
  • tweaks to set construction break times for time-specific prayers

While there are many ways for employers to properly navigate religious accommodations, the following best practices stand out:

  • Update workplace policies to provide a clear process for requesting religious accommodation. Consider creating forms to ensure that necessary information, but no more than may be required, is provided by the employee.
  • Develop an internal process to assess and respond to requests, including inclusive messaging, non-combative correspondence, and productive dialogues (whether in person, on Zoom, or via email) with employees requesting accommodations.
  • Provide appropriate training to key employer stakeholders.
  • Involve qualified legal counsel in developing the process, assisting with communications, and especially before refusing a requested accommodation.

Amy Robinson, a partner at Miller Nash LLP, represents public and private employers in Oregon, Washington and Alaska on a wide range of workplace issues. She can be reached at [email protected] or 503.205.2512.

Iván Resendiz Gutierrez, Partner at Miller Nash LLP, is a trial attorney serving the employment and appellate needs of public and private clients in Oregon and Washington. Iván can be reached at [email protected] or 503.205.2377.

Ruth R. Culp