Included in an employer’s obligation not to discriminate against employees on the basis of their religion is the obligation to provide reasonable accommodations for the employees’ religious beliefs and/or practices. One accommodation may be considering requests for time off for religious holidays.
Such an accommodation must be granted unless it would be an undue hardship on the employer’s operation of its business. For a religious accommodation to be an undue burden, the employer would need to show that the proposed accommodation in a particular case poses a “more than de minimis” cost or burden. In most cases, providing unpaid time off is not a burden.
This might be the case if an employee’s absence would compromise the safety of other employees. Or, if forcing other employees to change shifts to cover the employee’s absence would infringe on other employee’s rights under a seniority system. Or, if the employer would have to spend a significant amount for temporary workers or in overtime pay to cover the employee’s absence. Or if a significant part of the workforce wanted time off at the same time when the company needed to be open. Of course, each company’s situation is different, depending on its size and operations, and what might be a minor burden for one company might be significant for another.
The employer does not, however, have to pay the employee for the time that the employee is not working due to a religious holiday. Additionally, the employer may require the employee to make up the lost time, or may allow (or require) the employee to use a personal or vacation day for the religious holiday, as long as such is required for other personal time taken off.
Employers should be careful to set a policy that does not discriminate against religion in general, or any religion in particular. An employer who allows employees to use their paid time off for any reason except religious holidays, for example, most likely is violating the law.
Employers should consult with counsel regarding employment policies and practices that best address the needs of the company while complying with state and local laws applicable to the company’s place of business.