The U.S. Supreme Court set a new standard for religious accommodations for employers by defining undue hardship for the first time.
The decision was widely misreported as allowing employees to be granted the sabbath off, which has been long permitted under law.
The restriction had been that the employer was not required to provide such an accommodation if it would result in creating an unreasonable hardship, which up to now had been defined only on a case-by-case basis in various court decisions.
In the Groff v. DeJoy ruling, the court now says undue hardship exists only if the accommodation “would result in substantial increased costs; in relation to the conduct of the particular business.”
Robin Shea, partner in the law firm of Constangy Brooks Smith & Prophete, says employers should:
- Require requests for religious accommodation to be made in writing, with exceptions for employees who are not fluent in English or who have literacy issues. The request should briefly explain as to how the employer's policy or practice conflicts with the employee's religious beliefs.
- Review the requests, and make sure they are really religious in nature. With Covid vaccines, many employers received “religious” accommodation requests that were not based on religion but on politics or fears concerning the safety of the new vaccines. “Those may be legitimate concerns, but they are not ‘religious’ in nature,” she points out.
- If the request is religious in nature, assess whether the employee's belief is sincerely held. “When in doubt, assume that the belief is sincere.”
- If the request is religious in nature, and if the employee's belief appears to be sincere, then either grant the accommodation request or go through the ADA "interactive process" with the employee before making an “undue hardship” determination.