July 28, 2009
July 28, 2009
Oregon Legislature Broadens Religious Freedoms for Employees
Barran Liebman LLP
July 23, 2009
The Oregon legislature recently passed the Workplace Religious Freedom Act, clarifying an employer’s responsibility to reasonably accommodate the scheduling of leave time for the observance of religious holy days and the wearing of religious clothing in the workplace.
The Act makes it unlawful for an employer to restrict an employee’s ability to take time off for a holy day or to participate in a religious observance or practice. An employer must allow employees to use vacation or other available leave for this purpose if reasonably accommodating the employee’s use of the leave does not impose an “undue hardship” on the operation of the business.
The act makes clear that an employer is only required to allow the employee to use leave that is available to the employee and not restricted as to the manner in which the leave may be used. For example, an employer is required to allow an employee to use vacation or paid time off for leave for religious purposes but is not required to allow an employee to use sick leave for religious purposes if the employer’s policy restricts sick leave to instances of illness, injury or healthcare appointments.
In addition, the Act also makes it is unlawful to restrict employees from wearing religious clothing unless reasonably accommodating such clothing imposes an undue hardship. The exception is that public school teachers are still prohibited from wearing religious dress while performing their duties.
Employers are required to accommodate religious leave requests and dress unless it would pose an “undue hardship” on the operation of the business. The undue hardship standard adopted by the legislature is significantly higher than religious accommodation under federal law which defines undue hardship as “more than de minimus cost,” and instead embraces the “significant difficulty or expense” standard for accommodating disabilities under the Americans with Disabilities Act. The Act provides several factors to consider in determining if there is an “undue hardship,” which include the financial costs and impact to the employer as well as the safety and heath requirements of the facility.
Similar to other forms of discrimination, employees have a private cause of action for a violation of the Act and may file a charge of discrimination with BOLI.
What Employers Need to Know
• Review your employee leave and appearance/dress policies and revise accordingly.
• Seek advice from an attorney if considering denying a request from an employee to accommodate the wearing of religious clothing, taking time off for a holy day, or taking time off to participate in a religious practice or observance.
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