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Ask the Hotline | Accommodation for Religious Holidays

September 10, 2019
 
Question
 
We are coming into the time of year when there are many religious holidays. Can you tell us the rules under Massachusetts law regarding requests by employees for time off for religious reasons? Are there any new laws we should be aware of?
 
Answer
 
Religion is well-established as a protected class under both Massachusetts anti-discrimination law and federal civil-rights law. That means that when an employer receives a request for an accommodation -such as time off from work, a change in schedule, or some other work-related modification - it must enter into a dialogue with the requesting employee in an effort to reach an accommodation.
 
But an employer does not always have to accommodate the employee’s religious request. 
 
Massachusetts anti-discrimination law (M. G. L. 151B) addresses the issue directly by stating that … “it is an unlawful discriminatory practice for an employer to impose upon an individual as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such individual to violate, or forego the practice of, his creed or religion as required by that creed or religion, including but not limited to the observance of any particular day or days or any portion thereof as a sabbath or holy day and the employer shall make reasonable accommodation to the religious needs of such individual.” 
 
The statute also states that no “individual who has given notice as hereinafter provided shall be required to remain at his place of employment during any day or days or portion thereof that, as a requirement of his religion, he observes as his sabbath or other holy day, including a reasonable time prior and subsequent thereto for travel between his place of employment and his home.”
 
While the section above is quite clear as to the rights it provides for employees it also provides some rights for employers. For example, the law requires:
  • 10 days’ notice - any employee intending to be absent from work when so required by so his or her creed or religion shall notify the employer not less than 10 days in advance of each absence. 
  • Makeup work - any such absence from work shall, wherever practicable in the judgment of the employer, be made up by an equivalent amount of work time at some other mutually convenient time. 
  • Compensation - the law does not require an employer to compensate an employee for such absence. 
The law contains two other key definitions employers need to be aware of. The first one is reasonable accommodation. In this case, reasonable accommodation means a modification in employment conditions for an employee's or prospective employee's religious observance or practice as long as it shall not cause an undue hardship in the conduct of the employer's business. 
 
The employee has the burden of proof as to the required religious practice. The law covers any sincerely held religious beliefs, without regard to whether such beliefs are approved, espoused, prescribed or required by an established church or other religious institution or organization.
 
The second key definition is undue hardship, which means the inability of an employer to provide:
  • services required by, and in compliance with, all federal and state laws, including regulations or tariffs promulgated or required by any regulatory agency having jurisdiction over such services or 
  • where the health or safety of the public would be unduly compromised by the absence of such employee or employees, or 
  • where the employee's presence is indispensable to the orderly transaction of business and his or her work cannot be performed by another employee, or
  • where the employee's presence is needed to alleviate an emergency situation. 
The employer has the burden of proof to show that providing the accommodation would be an undue hardship.
 
Final thoughts
 
While the law states 10 days in advance, an employer should consider its current practice of how many days in advance an employee must request time off, including vacation, sick time, or a personal day. Imposing a lengthier standard for a religious request may raise the issue of disparate treatment. On the other hand, if your company time-off request policy is longer than 10 days, follow the law.
 
When it comes to having non-exempt employees make up work time, it remains the responsibility of the employer to record the number of hours worked in a week by the employee for the purposes of determining if any overtime may be owed.
 
AIM members with questions about this or any other HR related issue may call the AIM employer Hotline at 1-800-470-6277.
 
 
 
 
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