May 20, 2010
Not even a year old, the Oregon Workplace Religious Freedom Act (“OWRFA”) was amended April 1, 2010 to address concerns that the original law left school teachers unprotected. OWRFA [ORS 659A.033] requires all Oregon employers to reasonably accommodate employees’ religious practices and observances in several ways, provided no undue hardship is imposed on the employer’s business operations. One of OWRFA’s provisions prohibits employers from restricting an employee’s ability to wear religious clothing at work, unless doing so will impose an undue hardship on the employer’s business operations. However, when OWRFA was passed last summer, Oregon law still prohibited public school teachers from wearing any religious clothing while performing their teaching duties. ORS 342.650. Teachers who violated this law were subject to suspension or dismissal. ORS 342.655.
This discrepancy between teachers and the rest of the Oregonian working world has now been addressed. Through HB 3686, ORS 342.650 and 342.655 have been repealed and OWRFA amended. As amended, OWRFA now permits school districts to at least consider whether an employee’s wearing of religious clothing will interfere with the school’s legal obligations to maintain a religiously neutral work environment. Rather than outrightly prohibit religious clothing, schools must decide whether allowing a teacher to wear religious clothing will interfere with the school’s legal obligation to maintain religious neutrality or refrain from endorsing religion.
OWRFA was also amended slightly to emphasize that the employee’s request to wear religious clothing must be “in accordance with the employee’s sincerely held religious beliefs.”
In addition to addressing religious apparel, OWRFA requires Oregon employers to permit employees to use their available vacation or other unrestricted leave time to engage in religious observances or practices. Employers also must not restrict an employee’s ability to take time off for a holy day or to participate in religious observances or practices – so long as (1) these religious activities have only a “temporary or tangential impact on the employee’s ability to perform the essential functions of his or her job,” and (2) reasonably accommodating these activities does not impose an undue hardship on the employer’s business operations.
If reasonably accommodating an employee’s religious activities requires significant difficulty or expense on the employers’ part, then OWRFA permits employers to refuse making such accommodation on the grounds of undue hardship. Whether an employer will suffer an undue hardship by reasonably accommodating an employee’s religious activities will be measured against the following factors:
- the nature and cost of the accommodation needed;
- the overall financial resources of the particular facility/facilities involved in the accommodation;
- the number of employees at the affected facility;
- the effect on the facilities’ expenses and resources or other impacts on the facility’s operations;
- the employer’s overall financial resources, the overall size of the employer’s business with respect to the number of employees, and the number, type and location of the employer’s facilities;
- the type of business, including the composition, structure, and functions of the employer’s workforce;
- the geographic separateness and administrative or fiscal relationship of the employer’s facility or facilities;
- the facility’s safety and health requirements, including requirements for the safety of other employees and any other person whose safety may be adversely affected by the requested accommodation;
- the degree to which the accommodation may constrain a school’s obligation to maintain a religiously neutral work environment.
As the above list shows, if an employee requests reasonable accommodation to engage in religious activities which only temporarily or tangentially affect the employee’s ability to perform the essential functions of his job, an employer must have a legitimate business reason for claiming undue hardship before it can lawfully refuse to accommodate such limited activity.
Just as the passage of sexual harassment and disability discrimination laws (and ensuing lawsuits) required employers to re-evaluate their employment policies and practices in the past, OWRFA shows that religious discrimination and accommodation laws are now poised to grab center stage in the drama of running a company. As with any sensitive issue, employers must be ready to engage in an interactive dialogue with their employees regarding mutual expectations, employee abilities to perform essential job functions, and reasonable accommodations. Understanding the requirements and parameters of OWRFA will help employers frame those discussions in a way to minimize risk and maximize employee relationships.
OWRFA became law on January 1, 2010. The amendments pertaining to schools become effective July 1, 2011. In the meantime, the Bureau of Labor and Industries and the Oregon Department of Education are tasked with developing regulations for implementing OWRFA uniformly.