From Lawyer to Employer | Season 5, Episode 1| Beyond Vaccines: Rethinking Religious Accommodations in the Workplace

It used to be that an employer could deny religious accommodation if it imposed anything more than a trivial cost, which is an employer-friendly standard, but that's no longer the law following Groff. Now, as we'll discuss today, the standard they're applying governs dress codes, vaccines, et cetera, is a higher standard and that really is playing out in these vaccine cases.

Sarah Niemiroski: So before we get into any specifics, your article does highlight Groff DeJoy as a game changer. If you could walk our listeners through what the law looked like before Groff and, what the Supreme Court really changed.

Peter Murphy: Sure. As I mentioned just a second ago, it was a de minimis test before, right?

As, as that states, it's a, a relatively easy standard for employers to meet and gave them a lot of flexibility when addressing requests for religious accommodations. In that 2023 decision in Groff, however, the Supreme Court rejected that approach entirely and really held that an employer must now show that the accommodation would impose substantial increased costs in relation to the conduct of its particular business.

So let me say that again, substantial increased costs in relation to the conduct of its particular business. And so this means employers need to consider a variety of factors, and that's what the courts will consider as well, including the accommodation at issue, the practical impact that'll have given the nature and size and operating costs of the employer.

And so while that is a change, it also brings it closer in line to the definition of undue hardship under the ADA, which also is used to evaluate accommodation requests in disability cases. And under the ADA, courts look at whether there's a significant difficulty or expense related to that accommodation.

So now, while it is a change, at least Title VII and the ADA are relatively similar now.

Sarah Niemiroski: So it sounds like beforehand, it used to be that, you got a religious accommodation requested, and you could say, "Okay, this is gonna cause me some small problem. I don't wanna grant it." And that would functionally be okay within the parameters of the law.

But now, instead of getting this quick dismissal of a religious accommodation request, you need some real evidence of hardship. Is that right?

Peter Murphy: That's right. That's right. And so now as we're gonna talk about, you engage in that standard kind of interactive process that you would do under the ADA, for example, and really evaluate the full factual record.

Sarah Niemiroski: So what really are employers getting wrong nowadays? Your article flags several common pitfalls.

Peter Murphy: Sure. One of the ones we've seen in several of the vaccine cases is inconsistent enforcement. Where you're denying untimely requests that are based on a religious exemption, but you're allowing some leeway in regards to requests made for other reasons, whether it's disability or otherwise, personal preference, et cetera, right?

And like with all accommodation issues consistency matters and if you're unable to show consistent enforcement, that's gonna be a problem in a court case.

Sarah Niemiroski: So what's the second issue that we're really seeing?

Peter Murphy: The second issue is kind of blanket enforcement, right? This is our policy, and it applies to everyone.

Courts don't particularly care for that, especially in the vaccine cases. There was one case out of the Eighth Circuit e- earlier this year, where the, the hospital system had a blanket policy. Everyone needed the COVID vaccine, right? And they terminated this employee even though she was fully remote.

And so the court found that there was an issue of fact there. They don't like blanket enforcement of policies when it doesn't impact the... It wasn't really an essential function of that individual's job, right? She wasn't coming into contact with patients, et cetera. So in that case at least, that created an issue of fact that required a, a trial, and we'll see how that case plays out.

Sarah Niemiroski: What's the third issue that we've been seeing?

Peter Murphy: Third issue, and this pops up not just in the vaccine cases, but also in all requests for religious accommodations, and that's employers improperly evaluating the sincerity of the request. Sometimes employees will come forward with a request for an accommodation that's based in part on religious principles, and then maybe in part based on political viewpoints or personal preferences.

And just because it's... there's a couple different reasons mixed in there, that doesn't give the employer the ability to reject it out of hand. In- instead, courts have made clear that a request can be grounded in both religious and non-religious reasons, and if there is a religious component to it, then that needs to be evaluated a- and taken seriously by the employer.

Sarah Niemiroski: So when I'm hearing these three buckets, for those of us who really operate with, disability accommodation requests, and I think that's what us employ- employers are seeing more frequently, it really sounds like you're just supposed to treat these religious accommodation requests very similarly to the disability ones.

Is that right?

Peter Murphy: That's right. I think that's exactly right. When an employee comes forward with a, a religious accommodation request, you'll hear that employee out, you'll meet with them, you'll discuss the various alternatives, ask for i- if they have some sort of supporting documentation, et cetera, and consider it within the specific context of your employment or your workplace as well as their particular job.

Sarah Niemiroski: All right. So let's try and bring this all together into a hypothetical. So let's see if you could walk us through a scenario and how an employer should think about that issue step by step.

Peter Murphy: Sure. We could think about a regional retail chain. They have several locations. They're open seven days a week, as all retail chains seem to be now.

And you have an assistant store manager who comes to HR, and she's recently become more observant in her faith and claims she can no longer work on Saturdays because she observes the Sabbath. Of course, Saturdays are one of the highest traffic days of the week for that store, and assistant manager are expected to work at least two Saturdays a month

Sarah Niemiroski: So right away, as the employer, you get this request in, and you're thinking shoot, this is the busiest day of the week, what are we supposed to do with this?"

They come to you, and what is really the first thing that they should do?

Peter Murphy: Yeah. First thing, of course, is don't just reflexively say no, right? You have to engage in interactive discussion with this particular assistant manager. So you would sit her down a- and figure out more about it, including can she not work the full day, or is it just until sundown or is there some sort of differential that you can figure out in terms of is it only certain times of year?

You need to understand her request fully. And you shouldn't just reject it because she's recently come to the faith, right? That's not a proper grounds to re- to reject it. So even though it's new for her, you need to take it seriously and meet with her.

Sarah Niemiroski: Yeah, I was gonna say, so it sounded like in this scenario it's a new, newly found belief that she can't work on Saturdays, on the Sabbath.

Do you as the employer get to question whether the belief is genuine? H- what does that really look like?

Peter Murphy: It's very difficult for employers to push back on that sincerity element of the religious accommodation standard. Really, the question is, do they have a sincerely held religious belief?

And it's very difficult for em- employees to push back on that. I think, someone coming up with or just disclosing it, rather, to an employer for the first time that doesn't make it insincere. And so employers have to be very careful pushing back on, on that element.

Sarah Niemiroski: Yeah, I think it, it really puts you in a different spot than the disabil- I know we've been talking a lot about the disability- accommodation requests and, how you look at those versus religious accommodations. If you get an ADA request, I feel like we're so used to being able to say, "Okay, go to your doctor and bring us back something that affirms this." And we're not really in that same position with the religious accommodation requests.

Peter Murphy: That's true. Yeah, the disability can be a little more objective, right? Because there's oftentimes medical, your knee injury is supported by a rating and etcetera, right? X-rays. The, the religious belief can be a little subjective. And there's degrees within particular religions, too. Some people are much more observant than others, right?

And employers really aren't the ones to judge the since- sincerity of someone's belief.

Sarah Niemiroski: But back to the scenario with the assistant manager in the store. You've engaged in the interactive process. You've sat down, had a conversation. You accept it's sincere. You still have the request that she can't work on the Sabbath.

So what do you do?

Peter Murphy: Yeah, y- you explore your various options. Can you swap her Saturday shifts with another assistant manager who's willing to take on those shifts? Can you adjust it so she's covering weeknight closing shifts instead, right? You're gonna look at all the scheduling issues. You're gonna look at, is there a potential for shifting her to an open and available position that she'd be qualified for and that would easily accommodate her request?

Can you bring in some part-time coverage? There's the w- the courts expect you to go through and engage in real interactive process. There was just a case released last week where the Ninth Circuit vacated summary judgment for an employer in a religious accommodation case and remanded it back for trial because in that case, the employer said you can transfer to a new position."

But it didn't do anything to, to identify any open and available po- positions for that group of employees in a vaccination case. And so the, the court felt like they didn't do a good faith interactive process, and that was a problem. And so here, getting back to your question, by doing all those various things and looking at all those options, you'll be engaging in that good faith interactive process.

Sarah Niemiroski: So what happens if you go through the process and, you decide that none of the options work?

Peter Murphy: In, in that situation, you'll make the best decision you can. Ultimately if you find you can't accommodate it and you're gonna have to separate from employment then at least you've documented the good faith efforts you've engaged in and give yourself a good defense.

In, in all those cases we highlighted in our article recently where the employers are prevailing, they have evidence and they're able to articulate why the vaccination policy exists in the first place and how the exemptions would affect their operations, right? And that's led us to this podcast today, so we'll focus on that.

But, having that good faith concrete record to support whatever decisions you're gonna make, it puts you in the best spot for defending against any claims.

Sarah Niemiroski: Yeah. So when you're looking to show, that, that undue hardship, in the Groff decision, they said substantial increased costs. And, employers will hear that term cost and think, "Okay, I need to show that this will monetarily harm me." Is it only about money when you're looking at substantial increased costs, or is there something else that we can consider?

Peter Murphy: It's not only about money, but money's a, can be a large factor, right?

That's something the court's definitely taken as significant consideration is the economic impact on the employer. But there are other considerations that factor into that as well. For example, in some of the vaccination cases, patient safety, right? There's a reason why hospitals and healthcare systems have vaccination policies and in patient-facing positions, that's a key component, right?

Maybe not a technically a monetary component, but it is a, an example of something courts would consider. Staffing shortages, risk to patients outbreak protocols, things of those natures are all maybe non-monetary things that factor into the analysis. Again, it- it's workplace dependent, it's job dependent, so that's gonna be the key focus.

Sarah Niemiroski: Yeah. So bringing it back to the hypothetical again, the employer here would have to document, what does Saturday staffing actually look like? What is the financial cost of bringing in someone part-time or overtime shifts for the assistant store managers covering? But also, would it require other employees to take extra shifts?

And, how does that affect their workloads? And, would customer service suffer in some sort of measurable way?

Peter Murphy: That's right. That's exactly right. Those are all the things that they're gonna have to consider. Can't just say, "Saturday's busy," throw up your hands and deny it, right? You're gonna need to consider all those different things.

Sarah Niemiroski: Yeah. But then you also, need to be careful about inconsistencies. If you've been letting other managers swap Saturday shifts for personal reasons, like your kid's soccer game, and deny the religious request, that'll be a problem.

Peter Murphy: That's right. Yeah. In fact just recently in Ohio, there was a, a case where an employer lost for precisely that reason, right?

The, the employee was able to at least bring forward some evidence that the employer was inconsistently enforcing the policy and really denying religious ones and letting some non-religious ones proceed with accommodations or exemptions rather.

Sarah Niemiroski: So if the employer handles everything well, engages in the process, documents everything, again document, please document, and grants a reasonable accommodation, what...

or doesn't grant it, what does that look like?

Peter Murphy: Yeah, best case scenario someone swaps shifts with her. Maybe, she can shift to a morning shift, and as long as she's home by sundown, depending on whatever her particular accommodation is, and everything runs smoothly, and we never hear from her again.

If, on the other hand, you get to the end of that process, and you really decide this is something that cannot be accommodated, given, staffing issues operational needs, et cetera and you ultimately make a change in her employment, at least you have gone through that process and have a solid record to defend your decision.

Sarah Niemiroski: I hope our hypothetical employer, finds a way to make it through this accommodation request. But if we just take this scenario and bring it into the real world, if you're an employer listening to us right now, what should they be doing?

Peter Murphy: Like in many situations, right?

Document, right? If it's not documented, it didn't happen. That's something employers like to say, right? Not always true, but it just helps keep everyone on the same page when things are documented. Make sure your employee knows what the expectations are and what your decision was, and just with staffing turnover, et cetera, someone else comes into the managerial role, they know what decisions were made in the past.

So document. Two, it helps to centralize accommodation reviews, right? To have the same person or the same group handling all requests or at least being involved in them to ensure consistency across the organization, especially with larger organizations. As we've talked about, when there's inconsistent application, either within a department or within different departments in the same organization, that can lead to difficulty for the employer.

So having some sort of stan- centralized accommodation review i- is a good thing. And then three, supervisors should be trained on this. They should know that with all the accommodation requests, not just religious ones, that it... when they receive those requests, they need to involve, whether it's HR or the accommodation team or whatever it is, and make sure that all requests are being handled consistently and in a timely manner, right?

We don't wanna ignore requests, and we wanna resolve them as soon as possible. So I think those are three good tips for employers to take away from today's podcast.

Sarah Niemiroski: Thanks, Peter. When I'm listening to these tips, there's something we didn't really talk about so far in the podcast, and I just wanna touch on it really briefly.

You said centralizing the accommodation review. So if I'm just run-of-the-mill manager and I get either a religious accommodation request or a disability accommodation request, what have you, should I be the one handling it or should it go up to HR?

Peter Murphy: If you have an HR team in place, you should involve the HR, right?

And they often have much more experience with handling accommodation requests. They have that overarching view of the entire organization, et cetera. And yes, new managers, all managers should involve HR and the appropriate staff in accommodation requests.

Sarah Niemiroski: Thank you so much, Peter. It really sounds like, a lot of these vaccine accommodation cases, like I said at the start of the podcast, COVID-19 vaccine exemptions, you hear it and you're like, "Oh, that's so six years ago."

But the principles that are coming out of it seem to apply much more broadly, and these cases are really fleshing out the new religious accommodation standard. So I guess thank you so much for coming on and talking to me about this today.

Peter Murphy: Thank you for having me.

Sarah Niemiroski: Of course. To everyone listening, I hope you have a great rest of your day, and we will join you again in the future with another podcast.

Host: Thank you for joining us on this episode of From Lawyer to Employer, a Shipman podcast. This podcast is produced and copyrighted by Shipman & Goodwin, LLP, all rights reserved. The contents of this communication are intended for informational purposes only and are not intended or should not be construed as legal advice.

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