I did a little more Title VII research because I anticipate that argument will be made by most employers.
When it comes to the "safety" aspect of the undue hardship, the main case we have on the books is
Webb, 562 F.3d 256 (2009). Another case with analogous facts to
Webb is
EEOC v. GEO Grp., Inc., 616 F.3d 265, 273 (3d Cir. 2010). This case features some language that employers will probably cite to in denying the accommodation: "A religious accommodation that
creates a genuine safety or security risk can undoubtedly constitute an undue hardship for an employer-prison.”
However both
Webb and GEO pertain to correctional/police officers whose headdress/scarf posed a risk of strangulation by violent felons. Courts have found that prisons or correctional facilities are essentially in a realm of its own when it comes to ensuring safety measures.
Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Outside of prisons, there's precedent for religious exemptions to the government enforcement procedures of some safety requirements.
See, e.g., Occupational Safety & Health Admin., U.S. Dep’t of Lab., STD 1-6.5: Exemption for Religious Reason from Wearing Hard Hats (June 20, 1994),
https://www.osha.gov/enforcement/directives/std-01-06-005 (exempting employers from citations for certain violations based on religious objection of employee, but providing for various reporting requirements).
DanielH- Regarding the "what if you come on site" argument, we have a whole host of caselaw on our side finding that employers cannot rely on "what if" scenarios.
An employer cannot rely on
hypothetical hardship when faced with an employee’s religious obligation that conflicts with scheduled work, but rather should rely on
objective information.
See Tabura v. Kellogg USA, 880 F.3d 544, 558 (10th Cir. 2018) (reversing summary judgment for employer where it “did not . . . cite to any evidence to support its assertions” that accommodating plaintiffs’ need to observe their Sabbath would impose an undue hardship “in the form of unauthorized overtime, quality control issues, and even forcing entire lines to shut down”);
Brown v. Gen. Motors Corp., 601 F.2d 956, 960 (8th Cir. 1979) (holding that “
projected ‘theoretical’ future effects cannot outweigh the undisputed fact that no monetary costs and de minimis efficiency problems were actually incurred during the three month period in which [employee] was accommodated”);
Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir. 1981) (undue hardship requires “
proof of actual imposition on coworkers or disruption of the work routine”
rather than “conceivable or hypothetical hardships” (internal quotation marks and citation omitted));
Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1492 (10th Cir. 1989) (“
Any proffered hardship . . . must be actual,” not speculative).
Essentially, our employers have to look at things retroactively rather than prospectively. If we've been offsite for the past 20 months with no interaction with any coworkers, the employer must rely on that in issuing an accommodation rather than the off-chance that you may come in for the odd meeting or tech issue.
