by Reed Richardson. White---in-article.jpg


This time of year, a small business owner may be forgiven for thinking that his or her company has entered a weeks-long holiday gauntlet. Starting even before Thanksgiving, the calendar marks the arrival of seemingly incessant, often overlapping, and sometimes conflicting religious and cultural holidays, among them Eid al-Adha, Hanukkah, Christmas, Kwanzaa, Epiphany, Ashura, and the Martin Luther King Jr. holiday, as well as the traditional and Chinese New Year’s celebrations. For still growing companies, the tightly packed nature of the holiday period can be an especially stressful and challenging time, one that often turns into a delicate balancing act between respecting the rights of individual employees and ensuring the continued success of you, the employer.


Special circumstances for small businesses

“What we’re going through what I call the ‘December dilemma,’” explains Dr. Georgette Bennett, president of the Tanenbaum Center on Interreligious Understanding. “It’s the time of year where it’s very easy to make a lot of employees feel excluded or like second-class citizens.” And though one might think that smaller companies are less susceptible to being buffeted by these workplace holiday issues, Bennett believes that just isn’t the case anymore.


“Today, I think it is actually more important for small businesses to understand how to deal with religious holidays in the workplace than it is for large corporations,” says Bennett. A Holiday0.gifFortune 500 company, after all, typically staffs a vast human resources department that is fully versed in the legal and ethical issues involving religious holidays in the workplace. Small businesses, on the other hand, often have little more than a full-time office manager or company holiday policy, if that.


“In addition, in a large corporation, there are usually enough co-religionists where employees won’t feel as left out or isolated,” she adds. “But people have a much more intimate relationship within a small company, so if someone feels excluded there because of how they’re treated when it comes to religion or culture, it’s going to have a much greater impact.”


Know your employees

This growing awareness of religious and cultural diversity in the workplace represents a sea change from 35 years ago. Back then, an overwhelming majority of the U.S.-born workforce—more than 95 percent—was Christian. Even a large majority of the foreign-born workers immigrating to the U.S. at that time came from Europe, a traditionally Christian region. Today, however, things are noticeably different. The recent influx of immigrant workers from Latin America, Asia, and Africa means U.S. businesses are now much more likely to have employees of differing religious and cultural backgrounds. And though roughly 80 percent of the U.S. population still identifies itself as Christian, the 20 percent who are not still translates into 60 million people.


Similarly, it’s a good idea for a small business to get a sense of its own internal demographics before building any kind of religious holiday policy. “This is a delicate task,” Bennett acknowledges, “since discrimination laws prevent asking job candidates about their religion and even long-time employees might be uncomfortable answering such a question.” A good, alternative involves asking both potential and current employees days and times they would and would not be available to work in the coming months. Another tack might involve an anonymous worker survey gauging employee interest in time off for various religious holidays. “Once you have a sense of this, there are a whole bunch of steps you can take that are effective,” explains Bennett.


Know the law

However, when considering these steps, it’s important to also understand the legal restrictions involved. “If you are a private employer, your responsibilities to your employees are Holiday1.gifdifferent than in public institutions,” says workplace discrimination attorney Sara Rapport of the Rhode Island-based law firm Little, Medeiros, Kinder, Bulman, and Whitney. Private companies are not constrained by the First Amendment, she notes, so private employers are not legally obliged to abide by a “general equivalence” rule when it comes to things like religious and cultural-themed parties, office decorations, or holidays.


Nonetheless, Rapport stresses that all U.S. companies are still bound by anti-discrimination laws. As a result, private employers do have to accommodate employee requests for time off to celebrate religious holidays unless it poses an “undue hardship” on their business. What qualifies as a religious holiday will vary from one employee to another, but what isn’t up for debate, according to the Equal Employment Opportunity Commission, is the legitimacy of a religion or sincerity of an employee’s beliefs.


As for what constitutes a hardship, that too will differ from company to company, Rapport acknowledges, but a few common sense questions usually lead to a quick answer. “I feel safe in saying that, even for small employers, if you don’t give someone one day off to celebrate Yom Kippur, for example, you could find yourself in big trouble,” she says. More extensive, long-term requests, however, like, say, a requested month-long absence for Ramadan, would probably be justifiably denied by the employer, she adds.


The goal, most experts agree, is to treat all employees equitably (including the ones who might end up covering for an absent employee), weighing individual requests against the impact upon the whole of the company. “Neither the employee’s nor the employer’s needs are irrelevant,” Rapport points out, “but there needs to be a back and forth.”


Options, options

In the end, perhaps the best way to accommodate various religious holidays is to provide employees with more options. According to Bennett, granting floating holidays, allowing holiday swapping between workers, or setting up flexible work hours all represent good tools worthy of adopting into a formal company policy. But she points out that perhaps the best way to resolve religious holiday issues at work is to simply add a few generic “personal days” to each employee’s work benefit. “This is a very good solution,” notes Bennett, “because it doesn’t discriminate against anybody, including those nonbelievers in your company, who wouldn’t be taking any religious holidays anyway.”


Tips for accommodating religious holidays in your small business

  • Flexible scheduling (staggered work hours or longer, make-up shifts)
  • Holiday swapping (employees of different religions pair up to cover each other’s absences)
  • Floating holidays (allotting employees a few additional paid days off each year beyond normal vacation days to use on religious holidays of their choosing)
  • Personal days (similar to granting floating holidays but more flexible for employees)
  • Unpaid leave (solution of last resort, if not managed carefully, can end up punishing employees who don’t celebrate more widely recognized holidays)

–Daniel Kinder, Andrew Ullucci (Rhode Island Employment Law Letter) and Dr. Georgette Bennett (Tanenbaum Center on Interreligious Understanding)


Questions a small business owner should ask to determine whether an accommodation for an employee’s religious holiday would represent an undue hardship on the company

  • What is the cost? (To protect yourself and your business from legal action, it’s a good idea to document why any rejected accommodation would have been prohibitively expensive.)
  • What kind of disruption will it create? (How will a requested absence affect your business’s productivity, customer relationships, and overall morale?)
  • Will it violate a collective bargaining agreement or breach a contract? (If the answer is yes, the employer has little recourse but to deny accommodation.)
  • Does it infringe upon other employees’ religious freedoms? (Again, if it will, the accommodation should be denied or renegotiated.)
  • Will it jeopardize the safety of other employees? (If the accommodated employee’s absence will result in an understaffed job site or too many untrained employees and substantially increase workplace risk or violate OSHA safety regulations, it should be refused.)

–Daniel Kinder, Andrew Ullucci (Rhode Island Employment Law Letter)

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