The New Jersey Law Against Discrimination (“LAD”) already prohibits employers from discriminating against employees on the basis of their religion. The LAD regulations also require that employers make reasonable accommodations for employees with disabilities. These same prohibitions and requirements exist under federal law. Unlike these legislative mandates, however, the concept of religious accommodation, i.e., requiring employers to provide accommodations in response to religious objections, has grown out of case law, not legislation. That is, until now. New Jersey has added this requirement to the LAD.
The LAD was amended, effective January 13, 2008, to prohibit employers from engaging in any practice that would require an employee or applicant to compromise a “sincerely held religious belief.” This new provision codifies what the courts have told us; employers are responsible for accommodating the religious beliefs of their employees and applicants. So, while this amendment should not be changing the way you do business, it should be a reminder that you must accommodate employees with disabilities, as well as those with religious objections, and be sure you’re not forgetting job applicants.
The new LAD provision states that an employer may not “impose upon any person as a condition of obtaining or retaining employment, including opportunities for promotion, advancement or transfers, any terms or conditions that would require a person to violate or forego a sincerely held religious practice or religious observance.” The statute expressly requires an employer to accommodate requests for scheduling changes and days off to observe a Sabbath or other holy day, as well as the “reasonable time prior and subsequent thereto for travel between [a] place of employment and  home”. An employer must also permit a leave of absence based on religious observance or practice.
Accommodated employees, however, are obligated to make up the missed time at another “mutually convenient time” or use paid leave (other than sick leave) to cover their absences under this amendment. If the work cannot be made up or charged against unused paid leave, employers can elect to treat the employee’s time off as unpaid leave.
An employer is not required to provide a reasonable accommodation if doing so would inflict an “undue hardship” on the business. Before coming to this conclusion, however, the LAD requires employers to evaluate possible accommodations and determine that all reasonable accommodations would impose an undue hardship.
An “undue hardship” is defined as any accommodation that would require the employer to undergo an unreasonable expense, interfere with the safety or efficiency of the company’s operations, or disturb a bona fide seniority system or collective bargaining agreement. The statute lists the following factors that courts must consider in evaluating an employer’s proofs of undue hardship:
- The cost of the accommodation including any potential loss in productivity and retention or hiring of employees;
- The number of employees or applicants who require the particular accommodation; and
- If the employer has multiple locations, courts must consider the degree to which geographic separation of administrative functions will make the accommodation more or less difficult.
The statute also exempts an employer from accommodating an employee if doing so will affect the employee’s ability to perform the essential functions of his or her job, or “where the uniform application of terms and conditions of attendance to employees is essential to prevent undue hardship to the employer.”
The new legislation is available at: http://www.njleg.state.nj.us/2006/Bills/A3500/3451_R2.PDF.