Change to New Jersey Law Against Discrimination Provides Employees Greater Religious Accommodation Rights

February 4, 2008

While the New Jersey Law Against Discrimination ("LAD") has long prohibited discrimination on the basis of religion, effective January 13, 2008, the law's protections are greatly expanded for employees seeking religious accommodations. Amendments to the LAD impose an affirmative duty on New Jersey employers to reasonably accommodate employees' "sincerely held religious observance or practice". To satisfy this obligation, employers will be required to allow employees time off to observe the Sabbath or other holy day, unless such accommodation would pose an "undue hardship" on the employer's business. Such a duty appears to exceed an employer's obligation to accommodate religious practices under federal law. An accommodation need not be granted under federal law if an accommodation imposes more than a "de minimis" burden on the employer.

The amendments to the LAD require employers to reasonably accommodate an employee's "sincerely held religious observance or practice" unless "after engaging in a bona fide effort the employer demonstrates that it is unable to reasonably accommodate the religious observance or practice without undue hardship on the conduct of the employer's business." The law, however, provides no guidance on what will constitute a "bona fide effort" by the employer. Practically, these changes mean employers may be required:

• To grant employee requests to not work on the Sabbath, and other religious days, or
• To alter employees' work schedules to allow them to attend worship services,

unless the employer can demonstrate such accommodations would pose an undue hardship on the employer's operation.

The amendments provide some guidance as to what constitutes an undue hardship. For example, an employer will not be required to honor employee requests for a religious accommodation when such accommodation would:

• cause "significant unreasonable expense or difficulty, unreasonable interference with the safe or efficient operation of the workplace", or
• a violation of a bona fide seniority system or collective bargaining agreement.

In evaluating whether an undue hardship exists, the employer should consider the cost of the accommodation, including the loss of productivity and of hiring or transferring employees, and the number of employees who will need the particular accommodation. The amendments also advise that "an accommodation shall be considered to constitute an undue hardship if it will result in the inability of an employee to perform the essential functions of the position in which he or she is employed."

Additionally, the new law addresses how employers must manage pay and benefits implications in granting religious accommodations. If an employer grants an employee's request for time off from work as a religious accommodation, the employer, in its judgment, may require the employee to make up the work "at some other mutually convenient time", may charge the time off against any accrued paid leave (other than sick leave), or may charge the time off as leave without pay.

Further, while the amendments state specifically that the employee is not entitled to premium wages or benefits for work performed during the hours the employee is "making up" his or her time off for a religious accommodation, employers may still be required to pay accommodated employees some premium wages, such as overtime, if the employee works more than 40 hours per work week.

The amendments to the LAD leave many issues unaddressed, including what will be considered a religious "practice" or "observance". Despite these open issues, it is clear that the implications of the law are extensive and potentially far-ranging for New Jersey employers.

Employers should be mindful that the recent amendments to the LAD in addressing employee requests for religious accommodations may require employers to engage in a process resembling that followed for disability accommodations under the Americans with Disabilities Act. Jackson Lewis attorneys are available to answer inquiries regarding this expansion of the New Jersey Law Against Discrimination and other workplace issues.

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