By Lisa Krupicka
Employers who are open for business on the weekend often face the dilemma of scheduling workers when some take the position that they cannot work on their religion’s Sabbath. This article will provide some guidance on how to solve this dilemma.
- Not working on the Sabbath does not have to be a specific tenet of a particular religion in order to require accommodation. While a number of world religions have a specific prohibition on working on the Sabbath (including Seventh Day Adventist, Jehovah’s Witnesses, and Orthodox Judaism), most religions, including most forms of Christianity, require the Sabbath to be honored in some way, whether it takes the form of not working or simply attending religious services. As long as a belief is sincerely held, an employee is not required to document that his or her particular religion requires time off on the Sabbath.
- Reasonable accommodation of a religious practice is judged by a different standard than reasonable accommodation of a disability. An employer incurs an undue hardship if it must bear more than a de minimis (i.e., minimal) cost in order to give an employee his or her Sabbath off. Any cost in efficiency or wage expenditure that is more than de minimis constitutes undue hardship. The cost of hiring an additional worker, paying a significant amount of overtime, or the loss of production that results from not replacing a worker who is unavailable due to a religious conflict can be an undue hardship.
- There is no bright line rule as to what constitutes a reasonable accommodation. Employers have successfully offered a reasonable accommodation by, for example, allowing employees to use paid or unpaid time off to avoid working on their Sabbath, or by allowing them to ask other employees to voluntarily swap shifts, or by some combination of the two. However, there may be circumstances where such a proposed accommodation may not be reasonable. In Tabura v. Kellogg USA, the Seventh Circuit Court of Appeals reversed the district court’s grant of summary judgment in favor of Kellogg when it offered employees who were Seventh Day Adventists the accommodation of using paid time off and swapping shifts to avoid working on Saturdays, finding that there were issues of fact concerning whether this accommodation was reasonable that would have to be sorted out at trial. There was no dispute that even if the plaintiffs used all of their paid time off, they would still have to work some Saturdays. The dispute was whether the shift-swapping accommodation was workable to address the other Saturdays given the limitations on how many hours employees could work straight through and the limited number of employees who were trained to do the plaintiffs’ jobs and could therefore take their shifts. There was also an issue of how hard Kellogg tried to facilitate these swaps.
- Talk to your employees before making a decision. It is important for employers to demonstrate good faith before refusing a requested accommodation. Talking to your employees about what is workable for them is frequently the best way to get to an accommodation both parties can live with. An employee is not entitled to his preferred accommodation, just a reasonable one, but it’s hard to sort out the issues if the parties do not talk to one another.
If you are unsure about whether you have to offer an employee a religious accommodation, we are here to help!