We thought the Jewish High Holy Day, Rosh Hashana (start of the Jewish new year) would be a good time to alert you to the Oregon Workplace Religious Freedom Act.  Under this new law, all employers (after the beginning of the Gregorian new year) will be required to reasonably accommodate employees’ requests to observe or participate in religious practices, provided (1) participation in the religious activities has only a temporary or tangential effect on the employee’s performance of their essential job functions, and (2) no undue hardship is caused to the employer’s business.

Title VII of the Civil Rights Act of 1964 already prohibits employers from discriminating against employees on the basis of their religion and requires employers to make reasonable accommodations so that employees can observe their religion.  This federal law only applies to employers of 15 or more employees, however.  By contrast, Governor Kulongski recently signed into law the Oregon Workplace Religious Freedom Act (SB 786), which applies to all employers in Oregon, regardless of size. 

Although Oregon law already prohibits discrimination on the basis of religion, the Oregon Workplace Religious Freedom Act goes a step further.  Under this new law, employers must allow employees to use vacation leave, or other leave available to the employee, for the purpose of allowing the employee to engage in religious observance or practices.  Additionally, an employer must not restrict the ability of employees to wear religious clothing, take time off for a holy day or take time off to participate in religious observances or practices, if these religious activities have only a “temporary or tangential impact on the employee’s ability to perform the essential functions of his or her job,” and reasonable accommodation of these religious activities does not impose an undue hardship on the employer.

What constitutes “temporary or tangential” most likely will be defined by the Oregon Bureau of Labor and Industries’ rules later this year.  However, it seems clear that if a Jewish employee wants to take time off to observe the Jewish New Year (Rosh Hashana) and the Day of Atonement (Yom Kippur), or a Muslim employee wants to take time off to observe Eid Ul-Fitr (which marks the end of Ramadan) and Eid Ul-Adha (which marks the end of the annual pilgrimage to Mecca), or a Christian employee wants to take off Good Friday, then employers should allow them to do so.  The only grounds upon which the employer can prohibit such time off is that the absence will cause the employer an undue hardship, in that it will cause the employer significant difficulty and expense to cover for the employee’s absence.

Before claiming your business will suffer significant difficulty or expense for letting an employee take off for Good Friday, Rosh Hashanah, or Eid Ul-Fitr, though, you should consider whether an employee’s limited absence (or employees’ absences) actually will cause your company an undue hardship.   The Oregon Workplace Religious Freedom Act sets forth the following factors for determining whether accommodation of an employee’s religious request will cause undue hardship: 

• the nature and cost of the accommodation needed
• the overall financial resources of the employer
• the overall financial resources of the particular facility/facilities involved in the accommodation
• the number of employees at the affected facility
• the effect on the facilities’ expenses and resources or other impacts on the facility’s operations which will be caused by the accommodation
• the overall size of the employer’s business with respect to the number of persons employed by the employer
• the number, type and location of the employer’s facilities
• the type of business the employer operates, including the composition, structure, and functions of the employer’s workforce
• the geographic separateness and administrative or fiscal relationship of the facility of facilities of the employer
• the safety and health requirements of the facility, including requirements for the safety of other employees and any other person whose safety may be adversely affected by the requested accommodation.

Just as sexual harassment and disability discrimination laws (and ensuing lawsuits) required employers to re-evaluate their employment policies and practices in the past, religious discrimination and accommodation laws may now be poised to grab center stage in the drama of running a company.  Already, religious accommodation policies are being debated by city councils in major metropolitan areas to decide whether public schools should close for certain Muslim holy days.  See “Muslims Press for School Holidays in New York City,” The Wall Street Journal, Sept. 15, 2009.  As with any sensitive issue, employers must be ready to engage in an interactive dialogue with their employees regarding mutual expectations, capabilities to perform essential job functions, and reasonable accommodations.  Understanding the requirements and parameters of the Oregon Workplace Religious Freedom Act will help employers frame those discussions in a way to minimize risk and maximize employee relationships.