Prepare for expanded religious accommodations and expression obligations

Employers should prepare for expanded religious accommodation and religious expression obligations under the second Trump administration.

Trump admin focuses on workers’ ‘religious freedom’

In August, the Office of Personnel Management (OPM) issued two new policies on religion in the federal workplace. “Protecting Religious Expression in the Federal Workplace” encourages federal workers to show off their faith and even proselytize coworkers. The second policy, “Reasonable Accommodation for Religious Purposes,” focuses on examples of potential religious accommodations including telework. While these policies don’t affect private employers, they do reflect the Trump administration’s broad view of religious freedom in the workplace and may encourage religious employees in private workplaces to push for increased rights.

In last month’s FELI, we noted that Equal Employment Opportunity Commission (EEOC) Acting Chair Andrea Lucas issued a press release, Update on 200 Days of Action to Protect Religious Freedom, that identified all the actions the EEOC is taking to expand workers’ rights to “religious freedom”.

Federal EEOC decisions provide guidance

In the religious freedom press release mentioned above, the EEOC announced two federal sector opinions that provide additional guidance to employers on what is expected when employees request religious accommodation after the Supreme Court’s Groff opinion. In a decision involving the Department of Veterans Affairs (VA), the EEOC found the agency had violated Title VII of the Civil Rights Act of 1964 in how it accommodated a Muslim physician who sought Friday afternoons off to attend prayer service by working longer on Monday through Thursday.

The VA had countered with two options—to work two half days on Friday and Saturday or to take a part-time position. The EEOC said that while the employer isn’t required to choose the accommodation the employee prefers, the offered accommodation must still be a reasonable alternative and shouldn’t disadvantage the employee in compensation, terms, conditions, or privileges of employment.

As a result, the EEOC found neither option offered by the VA was a reasonable accommodation, and it rejected the VA’s undue hardship argument because the VA had provided no evidence that accommodating the physician would result in diminished patient care or would affect the VA’s ability to conduct business. The fact that accommodating the physician by allowing her to take Friday afternoons off would affect other employees’ ability to take Fridays off, potentially leading to lower morale, wasn’t considered to be an undue hardship.

The second case, which involved the Federal Reserve, found that the Fed didn’t put enough consideration into a law enforcement officer’s request for an exemption from the COVID vaccine mandate. The EEOC faulted the Fed for its speedy rejection of the officer’s exemption request without considering potential compromises.

These decisions reflect that the EEOC is raising the bar on religious accommodation. The common theme is that there is an increased expectation from the EEOC that employers justify their undue hardship affirmative defense and affirmatively show how an accommodation will negatively affect their business.

Takeaways for employers

For religious accommodations, employers should consider the following best practices:

• Ensure managers understand the new obligations around religious accommodations. Managers need to know how and when to escalate a religious accommodation request to HR or the appropriate personnel.
• Update training to include the issues around religious accommodation requests and clear guidance on what should put employers on notice about an employee’s need for religious accommodation.
• Develop clear processes for requesting accommodations.
• Define steps, roles, and responsibilities.
• Develop forms and guidelines for an interactive process.
• Require written approvals or denials.
• Document all communications with employees, including alternatives and factors considered in granting or denying accommodations.

For religious expression, employers should:

• Respect beliefs and strive for civility;
• Protect religious rights while maintaining team fairness;
• Apply policies evenly across all faiths and beliefs; and
• Equip managers to recognize and prevent conflicts.

The Federal Employment Law Insider (FELI) is written by David S. Fortney, H. Juanita Beecher, and Burton J. Fishman of Fortney & Scott, LLC.