Management Update

Tis The Season to Accommodate Your Employee's Religious Beliefs

By: Jerry L. "Jay" Stovall

This time of year is significant to many religions, a great many of which do not celebrate the Christian tradition of Christmas. (This is not an invitation to discuss the Pagan origins of the Christmas tradition. My daughter, the missionary, has already given me an ear-full. Please allow me my fantasy that Baby Jesus had a beautiful spruce tree topped with a real angel at his birth.) A few of the more well-known religious holidays are listed below.

Bodhi Day This Buddhist holiday, which commemorates the day that Siddhartha Guatama, the historical Buddha, experienced enlightenment, is traditionally celebrated on Dec. 8.

Christmas This celebration of the birth of Jesus, the central figure of Christianity, takes place on Dec. 25. For Eastern Orthodox Christians, it takes place on Jan. 7.

Diwali This five-day Hindu Festival of Lights begins Nov. 6 in 2018 and Oct. 27 in 2019.

Eid al-Fitr This celebration that marks the end of Ramadan in the Muslim faith has shifting dates and can sometimes fall in December. (This currently falls at sundown on June 4, 2019.)

Hanukkah In 2018, this eight-day Jewish Festival of Lights will start at sundown on Dec. 2 and end at sundown Dec. 10.

Kwanzaa This weeklong secular holiday honoring African-American heritage is celebrated Dec. 26 - Jan. 1 each year.

Lunar New Year This traditional Chinese holiday marking the end of winter falls on Feb. 5, 2019.

Yule This Wiccan or pagan celebration of the winter solstice takes place every year between Dec. 20 and Dec. 23.

(Source: Tanenbaum Center for Interreligious Understanding)

Most employers are aware that Title VII both prohibits religious discrimination and requires that a covered employer must reasonably accommodate an employee’s sincerely held religious beliefs. This may include allowing an employee off of work. This does not mean however, that an employer must allow an employee off of work merely because they claim that “their religion” requires them to be off work. According to the EEOC, an employer need not provide the employee’s requested accommodation, in our case time off of work, if doing so would “impose more than a de minimis cost or burden on business operations”. As you can see, employers catch a break here. The de minimis standard is much more employer-friendly than the “undue burden” imposed by the ADA.

Don’t be too hasty to deny an employee’s request for accommodation because their “religion” sounds farfetched. (Anyone familiar with the Onion Heads? https://www.workplaceclassaction.com/2016/10/now-something-known-as-onionhead-is-a-religion-for-which-the-eeoc-can-bring-a-religious-discrimination-suit/).

According to the EEOC, in addition to the more main-stream religions, Title VII’s protections also apply to:

“…religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be ‘religious’ under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it. Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.

Religious beliefs include theistic beliefs (i.e. those that include a belief in God) as well as non-theistic ‘moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.’ Although courts generally resolve doubts about particular beliefs in favor of finding that they are religious, beliefs are not protected merely because they are strongly held. Rather, religion typically concerns ‘ultimate ideas’ about ‘life, purpose, and death.’ Social, political, or economic philosophies, as well as mere personal preferences, are not ‘religious’ beliefs protected by Title VII.

So, as we move through the holiday season, keep an open mind if your employees indicate that they need some sort of an accommodation for their religious beliefs. Typical accommodations recognized by the EEOC include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices. If you receive a request for accommodation, I would suggest that you go through an ADA-like analysis and, to beat the drum again, document the process that you used to consider the request.

Get Ready for OSHA’S New Emergency Temporary Standard Mandating Covid Vaccinations

By: Jerry L. "Jay" Stovall

As you know, on September 9, 2021, President Biden instructed the Occupational Safety and Health Administration to issue a new ETS requiring most employers to either require their employees to be vaccinated against COVID-19 or else submit to weekly COVID-19 tests. This Tuesday, October 12, 2021, the U.S. Department of Labor announced that it had sent the new ETS to the White House Office of Information and Regulatory Affairs. Although the OIRA usually takes weeks to make a final review, President Biden is certain to press them to act quickly on this new ETS. Employers should get ready for it to be issued in the next couple of weeks.

EEOC’s 10/25/2021 Updated Technical Assistance Regarding COVID-19 Vaccination Religious Exemption Requests Really Doesn’t Change Much

By: Jerry L. "Jay" Stovall

On October 25, 2021, the EEOC issued updated guidance related to COVID-19: “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” You can find the updated guidance here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. The new guidance adds section L.1 through L.5 dealing with Title VII and religions objections to COVID-19 vaccine mandates. In my opinion, the updated guidance does not change much and should be just a re-affirmation of what you are already doing. The key takeaways from this updated guidance are:

I. Employee Notification

An employee must notify his employer if the employee is requesting an exception to a COVID-19 vaccination requirement due to a sincerely held religious belief. The employee need not use the words “accommodation,” “Title VII” or any other magic words. Ideally, employers will educate employees about how they may request a religious accommodation.

II. Assessing Religiousness and Sincerity

The EEOC takes the position that ”Only if an employer has an “objective basis” for questioning the religious nature or sincerity of a belief would be justified in challenging the employee’s position through a limited factual inquiry and seeking additional supporting information.

Although Title VII protection extends to “nontraditional religious beliefs,” it does not require accommodation for “social, political, or economic views, or personal preferences.”

III. Undue Hardship

Deciding whether an undue hardship exists depends on the particular facts of each situation. Employers “will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve.”

The burden of proving an undue hardship in the context of religious accommodation is a relatively low one for an employer. Requiring an employer to bear more than a “de minimis,” or a minimal, cost to accommodate an employee’s religious belief is an undue hardship. Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business – including, in this instance, the risk of the spread of COVID-19 to other employees or the public. Other relevant considerations are the number of employees seeking a similar accommodation and the cumulative cost or burden on the employer.

IV. Universal Accommodations

Granting a religious accommodation to one employee does not mean that an employer must grant religious accommodations to all employees. The determination of whether an accommodation will cause an undue hardship is case-by-case and depends upon the employee’s position and duties.

V. Preferred Accommodation

Employer’s do not have to provide the specific accommodation requested by an employee. “If more than one accommodation would be effective in eliminating the religious conflict, the employer should consider the employee’s preference but is not obligated to provide the reasonable accommodation preferred by the employee.”

VI. Reconsideration After Granting an Accommodation

The fact that an employer has granted an accommodation does not mean that it must continue to do so in perpetuity. An employer may reconsider and even discontinue the accommodation “if it is no longer utilized for religious purposes” or poses an undue hardship “due to changed circumstances.”

Should You Be Paying Your Employees for Time Spent Booting Up Their Computers and Launching Software? Maybe...

By: Jerry L. "Jay" Stoval

In one of the more recent opinions to address this issue, the 10th Circuit held that Nelnet Diversified Solutions owed more than three hundred call-center representatives who serviced student loans for the time that they spent booting up their computers and launching software before clocking in.

Both the trial court and the appellate court found that booting up computers and launching software was integral and indispensable to the employees’ principal work activities, which included communicating with borrowers by telephone and email. The appellate court stressed there was a clear connection between the computers software programs, the work that the employees performed, and that the employees could not do their jobs without access to the data on the computer systems.

Diversified argued that even if the time spent booting up computers and launching software was compensable, it was de minimis and, as such, Diversified should not be obligated to pay it. The court of appeal quickly rejected this argument, finding that Diversified could easily estimate the amount of time employees spent booting up computers and launching software.

Although these employees did not work remotely, this situation is very likely to arise in situations where employees are allowed to work from home. If employees are required to perform any “pre-shift” activities, and if those activities are integral and indispensable to the employees’ principal work activities, they will probably be compensable. Employers should be extra careful to analyze the facts of their situation to determine if they are properly compensating their remote workforce for all compensable time.