Dear Littler: How Do We Handle Requests For Time Off For Religious Observance?

• Published date: 25 October 2022
• Subject Matter: Employment and HR, Employee Benefits & Compensation, Employee Rights/ Labour Relations
• Law Firm: Littler Mendelson
• Author: Ms Martha Keon

Dear Littler: We are a retail store with locations across the country. We are open seven days a week, and our sales staff have rotating shifts to provide coverage throughout the week. A number of employees in several of our stores have requested not to work on various days for religious observances. We have tried to accommodate them, but it's not always possible. Most recently, Frank, a salesperson in our Philadelphia store, asked to be exempted from work on Sundays for worship and to observe the sabbath as a day of rest. He has already used all 15 of his vacation days. We have allowed him to swap shifts with other salespeople, but he hasn't always been able to find others willing to swap. He has volunteered to take unpaid leave on Sundays, but with the holiday period approaching we need all hands on deck on Sundays, which is our busiest day. What are our obligations?

'Puzzled in Philly

Dear Puzzled:

It's no wonder you are puzzled! There are conflicts in the law regarding scheduling accommodations for religious practices, depending on the facts of each case. Title VII of the Civil Rights Act of 1964 requires an employer to reasonably accommodate an employee's religious observance or practice unless it would create an undue hardship for the employer. That's where the disputes come in. What is a "reasonable accommodation"? And what is "undue hardship"?

Reasonable Accommodation

In determining the reasonableness of an accommodation there is a question as to the degree to which the accommodation must eliminate the conflict between the employer's work requirements and the employee's religious practices. In its Guidance, the Equal Employment Opportunity Commission has stated that an accommodation is not "reasonable" if it reduces rather than eliminates the conflict or if it discriminates against or disadvantages the employee's terms, conditions, or privileges of employment though, ultimately, it concluded, "reasonableness is a fact-specific question."

In a recent case involving a USPS employee's request for Sundays off for religious observance,¹ the Third Circuit Court of Appeals, which covers Pennsylvania, New Jersey and Delaware, evaluated the employer's offer to seek others to cover the employee's shift. Noting that shift-swapping can be a reasonable accommodation, the court found it was not reasonable in this case because, despite the employer's efforts, the employee was not able to find someone to swap shifts on 24 Sundays in a 60-week period. "[P]ermitting...