How to Push Back on Religious Accommodation Requests

​Employers can push back—gently—on religious accommodation requests and don't have to grant requests that would result in an undue hardship, which is much easier for employers to show for religious accommodation requests than disability accommodation requests.

"Try your hardest to accommodate. If accommodation is easy, do it," said Kelly Dobbs Bunting, an attorney with Greenberg Traurig in Philadelphia, speaking at the SHRM Employment Law & Compliance Conference 2022 on March 30 in Washington, D.C.

If an employer has tried everything else, unpaid leave is acceptable. Bunting noted that companies that previously placed employees on unpaid leave when they declined COVID-19 vaccinations for religious reasons are now bringing them back to the workplace.

Undue Hardship Analysis

An employer doesn't have to provide a religious accommodation if it poses an undue hardship to a business. If it impacts safety, the employer can also say no to the accommodation request, she said. For example, if someone wants to wear long, loose-fitting religious attire near a bagel slicer, the employer might decline the request, but try to find another position for the worker away from the bagel slicer.

A business also might reject a religious accommodation request if the accommodation would decrease workplace efficiency, such as if everyone else has to cover the worktime of the employee who is missing work regularly, she said. The other employees may wind up leaving due to the extra workload. An employer that rejects such a request should be OK if it's sued in such circumstances, and it likely will be sued, she added.

If an accommodation would violate a collective bargaining agreement, it would result in an undue hardship.

Unlike with disability accommodations, cost often may be a winning undue hardship argument for employers when religious accommodations are requested. For example, if an employer has to hire a temporary worker to cover Saturdays for an employee who misses shifts then for religious reasons, there might be an undue hardship in accommodating the employee, she said.

New Guidance from the EEOC

Employers can request additional information when religious accommodations are requested, Bunting noted.

According to new guidance from the Equal Employment Opportunity Commission (EEOC), employers can push back when there is:

• Inconsistent behavior with the professed belief.
• Suspicious timing.
• Other objective reasons that the employer has to believe the requested accommodation isn't being sought for religious reasons.

HR may speak with supervisors and inquire about whether the person talks about religion at work or has ever asked for specific days off.

If an employee is resisting an employer-required COVID-19 vaccine because it was derived from fetal cell lines, the employer might ask whether the employee has received a flu vaccine or has ever taken a medication that was similarly created—and there are many, including aspirin. The employer shouldn't assume there is an undue hardship or automatically reject the requested accommodation but engage in a conversation with the employee about accommodation, Bunting said.

If an employee asks for time off on Saturdays to attend a religious service but also is known to attend a drag racing club then, the employer can push back and ask if the worker will attend the religious service or the drag race. If the employer discovers the employee lied, then the employer has an additional factor to consider. Given the current labor shortage, the employer might not want to lose the employee or have the worker complain about the company on social media, she added.

Suspicious timing might arise if a worker requests and is denied time off on a Saturday and then the worker claims to have joined a religious organization that meets then and revives the request.

Other objective reasons that a request isn't for religious reasons might include if the worker says he or she only puts organic substances into his or her body, defining organic substances as those that come from dirt. This isn't really a religious request, so the employer can push back and request a letter from a faith leader, she said.

Bunting recalled one employee who claimed that being a fan of the Philadelphia Eagles was a religion and he needed Sundays off. While Title VII of the Civil Rights Act of 1964 doesn't go as far as encompassing sports as a religion, the EEOC does define religions as including religious beliefs that are new or uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or illogical or unreasonable to others.

If employers get an accommodation request from a believer in a religion that is so obscure there's no faith leader, Bunting recommended asking the employee to e-mail HR a paragraph describing why the worker needs to be accommodated for religious reasons, judging its sincerity and, if determined to be sincere, granting the accommodation.

Best Practices

Bunting concluded by outlining best practices to follow when handling religious accommodation requests:

• Treat every employee's reasonable accommodation request as legitimate on its face. Don't, for example, automatically laugh when an employee says he or she is a follower of the Jedi. The Jedi religion is listed by the military as one of more than 200 religions it recognizes.
• Make accommodation policies clear, and apply them equally even if the employer has never heard of the religion.
• Train managers to recognize religious exemption requests and to refer them to HR.
• Don't be afraid to gently question the sincerity of the religion.
• Be aware of differences in state law. For example, Montana's governor made vaccination status a protected category under the state's anti-discrimination laws. Nonetheless, the law permits health care facilities to ask their employees to volunteer their immunization status in order to design and enforce accommodation measures to protect the safety and health of employees, patients and visitors.
• Document accommodations the employer tried to make and that the employee rejected.

If an employee rejects a good accommodation that an employer has offered, "you're golden," Bunting said.