HR Solutions: Religious Beliefs, Job Abandonment, Reductions in Force

Q: ​Can we require documentation from a religious authority to verify that an employee’s request for religious accommodation is consistent with the requirements of the religion or to verify that the person is actually a member of that faith?

A: ​Tempting as it might be for an employer to require documentation from a religious authority to verify that the employee is a practicing member, employees are not required to provide notes from clergy. Furthermore, even if an employee’s firmly held religious, ethical or moral beliefs are not associated with a specific organized religion, the employer still must consider the employee’s religious accommodation request.

Title VII of the Civil Rights Act protects employees from religious discrimination, stating, “Employers must reasonably accommodate employees’ sincerely held religious practices unless doing so would impose an undue hardship on the employer. A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his religion.” Examples of reasonable accommodation include: flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers, and modification of grooming requirements.

A religious practice or belief is further defined in Title VII regulations as “moral or ethical beliefs as to what is right and wrong which are sincerely held. … The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief” is not relevant.

Therefore, an employee’s religious accommodation request must communicate to the employer that there is a conflict between the job requirements and the employee’s firmly held beliefs or religious practices, regardless of whether the employee is a member of an organized religion or if the employee’s practices and beliefs totally align with those of an organized religion.

Employees are accountable for supporting accommodation requests with information about their bona fide religious beliefs and practices while outlining the manner in which conflict arises and is impacted when performing their job duties.

The employee and employer are encouraged to use an interactive process for determining reasonable religious accommodations.

-- Deb Levine

​Q: What should an employer do when an employee fails to show up for work? Is this job abandonment?

A: Job abandonment occurs when an employee has no intention of returning to the job and hasn’t notified the employer of his or her intention to quit. Generally, this is considered a voluntary termination. However, the employer must comply with the state’s unemployment division’s definition of voluntary termination.

Employers are cautioned not to assume that all no-call/no-show incidences are automatically job-abandonment cases. Occasionally, employees are unable to contact the employer, such as in medical situations, incarceration or some other forms of crises.

If it’s a medical condition, the employer is still obligated to determine if the absence is covered under the Family and Medical Leave Act (FMLA)and whether any leave will be paid leave or unpaid FMLA leave. In addition, the Americans with Disabilities Act (ADA) may apply in specific cases. Employers must investigate before making any determination in order to avoid FMLA and ADA claims as well as wrongful termination claims.

Employers should develop a policy defining how many days of absence will be considered job abandonment. There are no federal or state laws that specify the number of days. However, in some states, case law establishes three days as reasonable. Three days is the most common measure and will provide employers with enough time to investigate the absence but not enough to put the company in a position of holding a job for someone who will never return.

In addition to developing policies, employers must develop investigation procedures and follow the termination process. The process for investigating must include at least contacting or attempting to contact the employee before issuing the termination. Send a job-abandonment letter that explains the employer’s position and requires the employee to contact the employer if there are circumstances that the employer is not aware of, such as a medical issue that could potentially change the employer’s action. Send the letter by registered mail, and keep the return receipt in the employee’s file for proof of notification.

Follow termination procedures, such as updating the employee’s file with documentation and termination dates; sending COBRA and insurance forms, if applicable; and cutting the final paycheck according to state requirements.

A sound policy and procedure will provide proper guidance and reduce employer liability by leaving little room for potentially costly errors.

-- Vicki Neal

Q: Because of slow business, my employer will need to do a reduction in force (RIF) in the next few months. Can we include employees who have performance problems in the RIF?

A: Yes, if the employer has solid written documentation of the business purpose for the RIF, as well as defendable reasons for how and why employees were chosen for layoff.

After a company has determined that a RIF is the best way to meet the financial goals for the business, it should analyze which employees will be affected. Nondiscriminatory employee selection criteria should be developed and used to select the employees who will be laid off.

Performance criteria may be used, and employers may consider previous performance reviews and other performance documentation, such as warnings or any type of disciplinary actions. Employers may also wish to use seniority as a determining factor.

However, a RIF is based on a business need to cut costs or to better align resources so the business is able to meet overall goals and objectives -- and it is not the best way to manage performance issues. Laying off employees who have performance problems but who are in necessary positions may create problems for the company. The employer will need to fill the positions, and this could lead to claims of wrongful discharge or discrimination.

Using a RIF to manage performance can also lead to morale problems with staff members who remain employed. Employees often can see when their peers have performance problems. When strong-performing employees find out that poor-performing employees received severance payments and managers didn’t address the performance issues, it can lead to decreased respect toward managers, as well as waning employee loyalty and increased turnover.

-- Lesa Albright Scott

Deb Levine, SPHR, Vicki Neal, PHR-CA, and Lesa Albright Scott, SPHR, GPHR, are HR knowledge advisors in the Society for Human Resource Management’s HR Knowledge Center.