Religious accommodation requests can raise difficult questions for employers, particularly when an employee asks to change where or how their work is performed. Whether remote work is a reasonable accommodation depends on the circumstances. Each case is fact-specific and has to be assessed individually, but employers need to know what to consider when evaluating these requests.
A higher standard for undue hardship
When a request for remote work is made as a religious accommodation, the threshold for an employer is no longer the “de minimis” standard. Employers now have to evaluate undue hardship much as they would a request for accommodation for other protected categories, such as disability. Among other things, this means an employer needs greater justification to establish that a requested accommodation would create an undue hardship on the employer.
When remote work is the requested accommodation
A recent case in Oregon illustrates what that can mean in practice. In that case, an employee worked as a Front Office Team Lead in a dental practice. She requested an accommodation to either work in person without being vaccinated or, alternatively, work remotely. Initially, the employer prevailed on its argument that both options would create an undue hardship. On appeal, however, the court reversed, finding that the employer had not proven that allowing the employee to work remotely would cause an undue hardship as a matter of law.
In these situations, employers often reasonably argue that having an employee work remotely puts more pressure on other employees to take up the slack for tasks that cannot be done remotely. This employer made the same argument, saying that having the employee work remotely would put “undue pressure on people who were in the office” because they would need to help with certain tasks, such as patient flow.
However, the testimony also showed that there were between seven and nine front-desk staff members in total. Because the employer did not “spell out” why it would be difficult for other staff to absorb those in-person duties, the court found that it had not offered sufficient evidence to prevail at summary judgment on the undue hardship issue.
The takeaway for employers
The lesson? Taking the position that an accommodation for a religious belief of an employee would create an undue hardship on the employer requires specific and detailed evidence showing exactly how the business would be impacted and why it would not be reasonable for other employees to take on duties that have to be performed in person. This can be especially true in cases of requests for remote work—it may be tempting to deny those requests outright, because of general policies or mere inconvenience, but additional steps are necessary to successfully defend a claim.
Anne-Marie L. Storey is a leading Labor and Employment attorney with more than two decades of experience who advises Maine employers on all aspects of workplace law, including compliance, risk management, employee relations, investigations, and litigation. She can be reached at [email protected].
Bernstein Shur’s Labor & Employment Group helps businesses of all sizes build compliant, productive workplaces through practical, real-world solutions. The group provides full-spectrum support on issues ranging from hiring and discipline to investigations, union relations, and employment litigation.