Compliance Perspective: The Duty to Accommodate the Religious Beliefs of Employees & Job Applicants

YOU MAKE THE CALL

SITUATION: A worker notifies management that he can’t comply with hospital policy requiring all workers to get an annual flu shot because of his religion. He asks for permission to wear a protective mask instead. After two years of agreeing to the request, management holds the line in the third year and insists on the shot. When the worker refuses, he’s fired.

QUESTION: What did the hospital do wrong?

ANSWER: According to a new US Equal Employment Opportunity Commission (EEOC) lawsuit, the hospital committed religious discrimination.

Federal and state laws ban employers from discriminating against employees on the basis of religion. Mere tolerance of religious differences in the workplace isn’t enough to comply. Employers must also take affirmative steps to accommodate religious beliefs to the point of undue hardship. The EEOC is contending that the hospital’s refusal to let the worker wear a mask instead of getting vaccinated violated that duty and forced him to choose between his religion and his job.

The Importance of an Accommodations Policy
Ultimately, the court will have to determine if the EEOC is right—assuming, of course, the hospital isn’t pressured into settling the case. The one thing that is sure in this and other cases alleging failure to accommodate an employee’s religion is that the employer’s accommodations policy will play a key role in determining liability. In addition to being an essential part of your legal defense, having the right policy will help your lab avoid discrimination complaints in the first place.

10 Key Elements

EEOC regulations don’t specifically mention accommodations policies let alone suggest what they should contain. But based on government guidance, court cases and best practices, we can identify 10 elements such policies should include.

1. Policy Statement

Start with a statement expressing your lab’s commitment to provide a workplace where all individuals are treated with tolerance or respect regardless of faith and reasonable accommodations are made for sincerely-held religious beliefs and practices.

2. Definition of Religion

Define “religion” broadly as including not just traditional and organized religions but broader spiritual beliefs and practices not associated with a particular church, provided that those beliefs and practices:

• Guide personal conduct;
• Are an integral part of personal identity; and
• Are sincerely held.

3. Definition of Creed

If your state requires it, extend your accommodation to cover not just religion but also “creed,” which should be defined as personal beliefs or practices that meet the above 3 criteria for “religion” but which are either held by a person not associated with the religion or non-religious in nature.

4. Definition of Accommodations

Define “accommodations” as reasonable exemptions or modifications of work schedules, policies and procedures allowing for employees’ (or job applicants’) sincerely-held religious beliefs. List examples such as:

• Time for prayer during the work day;
• Leaves or absences for religious observances;
• Revisions or exemptions to dress codes and personal appearance policies, e.g., exemptions from a no-beards policy;
• The display of religious symbols;
• Accommodation of dietary restrictions or fasting.

5. Definition of Undue Hardship

Explain that the duty to accommodate doesn’t require accommodations imposing undue hardship and that undue hardship is based on cost, feasibility, health and safety, and other considerations. List examples, e.g., accommodations that would cause substantial disruption or endanger health and safety, like exempting employees who wear turbans from hardhat requirements in work

areas where significant head hazards exist.

6. Individual Responsibilities

List the responsibilities of individuals responsible for implementing the policy, including management, supervisors and employees themselves.

7. Accommodations Procedures

Set out procedures and for religious accommodations requests, including:

• Requiring employees seeking accommodations to make a written request;
• Materials they must submit to support the request;
• Responding to, evaluating and notifying employees of results of requests; and
• Appealing denials.

8. Criteria for Evaluating Accommodations Requests

Say that you’ll evaluate accommodation requests on a case-by-case basis in accordance with the requestor’s individual needs and unique circumstances involved. List the criteria used—and not used—to evaluate requests. The latter should include:

• Personal opinions or perceptions of organization employees about the religious belief or practice;
• How granting the accommodation may harm morale, e.g., “if I let this employee not work on Sabbath, other employees will demand weekends off”;
• Unreasonable preferences of a client or third party, e.g., an employee’s preference that his co-workers be Christian.

9. Confidentiality

Promise to keep accommodations request records in a secure location, separate from employee or job applicant personnel files and confidential and not use or disclose them except as required by law.

10. Assurance of Non-Retaliation

State that no person will suffer adverse employment treatment or consequences in retaliation for requesting or receiving religious accommodations under your policy.