A new provision in New Jersey's Law Against Discrimination, effective January 13, 2008, prohibits employers from engaging in any practice that would require a person to violate or forego a "sincerely held religious practice or religious observance." Thus, New Jersey employers are now generally prohibited from requiring an employee to work certain hours or shifts that conflict with that employee's religious practices, such as observing holy days. The law also bars employers from refusing to grant employees' requests for leave if the employees will use the leave solely to accommodate their religious practices. Workers who take time off for religious reasons would be expected to make up the time and work or take paid leave other than sick leave. Otherwise, an employer could treat the time off as unpaid leave.

An employer need not accommodate the employee's religious practice or observance if the employer can show that doing so would cause an undue hardship, such as unreasonable expense, difficulty, or interference with the safe or efficient operation of the workplace.

In determining whether such an undue hardship exists, the employer may consider loss of productivity, cost of transferring employees between facilities or hiring additional employees, the number of employees who will need the particular religious accommodation, and whether the accommodation would render the employee unable to perform the essential functions of his or her position. It remains to be seen, however, whether the New Jersey courts will construe any expense that is more than de minimis as "unreasonable," and thus, an undue hardship—as is the case under Title VII's analogous provisions governing religious practice accommodations—or whether the courts will apply a stricter standard. In addition, an employer need not make such religious accommodations where the employer can prove that setting uniform terms and conditions of attendance to all employees is essential to prevent undue hardship to the employer, or if the accommodation would violate a bona fide seniority system or collective bargaining agreement.

The implications of the law may be far-reaching, as it requires the accommodation of any "sincerely held" religious practice or observance. The law does not allow the employer to second-guess the validity of the practice itself, nor does it define exactly what qualifies as a religious "practice" or "observance." In addition, with scant guidance in the law, whether an employer can reasonably accommodate an employee without undue hardship must be determined on a case-by-case basis.

Further, employers must be cautious in making arrangements for employees to "make up" time allotted to accommodate religious observances. Although the new law specifies that employees will not be entitled to "premium pay," such as overtime compensation, for "make-up" time worked, the employee may nonetheless be entitled to overtime under federal law if the employee works more than 40 hours in any single work week, even if some of those hours encompass time the employee is "making up" for a religious accommodation the previous week. The new law, New Jersey A. 3451, is available by clicking here.

Copyright © 2008 by Ballard Spahr LLP.
(No claim to original U.S. government material.)

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