A Sign of the Times: California Bans Discrimination Based Upon Religious Dress

Over the years since employment discrimination statutes became part of the national landscape, issues have arisen regarding accommodation of employees who groom in a particular way or wear particular clothing as part of their religious practice.  As our nation has become more diverse, we see more women wearing the burqa  or hijab, as well as men sporting head coverings, beards or other indicia of their religion.  The issue has created tension in the workplace at times.

California law, like Federal law and the law of most states and many local governments, prohibits discrimination based upon religion.  Employers must, in fact, provide reasonable accommodation for religious beliefs and practices, so long as the accommodation does not impose undue hardship on the employer.  California has now taken a step further, effective January 1, 2013, and now defines religious belief and observance to include “religious dress practice and religious grooming practice.”

The new law defines ‘religious dress practice” to include  wearing or carrying  “religious clothing, head or face coverings, jewelry, artifacts,” or any other item that is part of the individual’s observance  of his or her religion or religious beliefs.  “Religious grooming practice” includes all forms of head, facial, and body hair ” worn in observance of one’s religion or religious beliefs.

There may well be jobs where the particular religious dress or grooming is problematic in terms of safety, the nature of the job, etc.  California law is clear that the employer must “explore any available reasonable alternative means”  of accommodating an individual’s religious belief or observance.  Accommodation could even include excusing the employee from duties that conflict with his or her religious belief or observance or permitting the duties to be performed at another time or by another person.  However, employers are excused from accommodation if it will impose undue hardship, which  usually refers to financial hardship or some material compromise of running the business.

In the months ahead, there will doubtless be cases in which employees seek to undertake religious observance in dress or grooming, but employers assert undue hardship.

Published in: on February 8, 2013 at 11:26 am  Leave a Comment  
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Highlights of New FMLA Regulations Effective January 16, 2009

In January 2008, President Bush signed the National Defense Authorization Act (NDAA), which, among other things, provided for FMLA (Family and Medical Leave Act) leave specifically for military families. New regulations from the Department of Labor implement these provisions and in additino make several significant modifications in the application of the FMLA. These new rules become effective January 16, 2009. Employers should prepare now to apply the new rules.

The following are a few of the highlights of the new provisions:

New Military Caregiver Leave. Eligible employees may now take up to 26 weeks of FMLA leave to care for a member of the Armed Forces (including members of the National Guard and Reserves as well as Regular Armed Forces) who has a serious injury or illness incurred “in the line of duty while on active duty” for which the military person is undergoing medical treatment, recuperation, or therapy. The leave is available to the spouse, child, parent or “next of kin” of the military personnel.

New “Qualifying Exigency Leave” for Some Military Families. In the event of certain defined “qualifying exigencies,” the spouse, child, or parent of a member of the National Guard or Reserves may take up to 12 weeks of leave, provided that the military member is on active duty, or has been notified of an impending call or order to active duty in support of a contingency operation. The qualifying exigencies include short notice deployment, certain child care and related activities, and rest and recuperation of the military member. (The rest and recuperation leave is limited to five days.)

Serious Health Condition. The meaning of “serious health condition” is clarified.

FMLA Notices. If you do not have an employee handbook or similar document distributed to all employees which explains FMLA leave to employees, you must give a general FMLA notice to each employee at the time of hiring that employee.

Designating FMLA Leave. Once you as an employer have sufficient information to determine that an employee’s leave is covered by the FM LA, you must notify the employee within 5 business days of his or her eligibility (this is an increase from the current 2 day requirement).

Scheduling Intermittent Leave. Employees who take intermittent leave for scheduled medical treatment, now have a statutory obligation to make a “reasonable effort” to schedule the leave so as not to unduly disrupt the employer’s business operation. Under the old regulations, employees were required only to “attempt” to schedule leave with the employer’s needs in mind.

Published in: on January 8, 2009 at 4:00 pm  Leave a Comment  
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