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New Bill Gives Public Employees Two Unpaid Religious Holidays Per Year: What Does It Mean for Employers?


July 1, 2014 by HR Advisor
Category: HR Advisor , Leave Policies

By Kristin Anger and the Attorneys of
Summit Law Group

On March 31, Governor Inslee signed into law a bill giving public employees two unpaid religious holidays per calendar year. SB 5173, which passed with overwhelming support, was designed to provide flexibility to employees of faiths like Islam or Judaism whose holy days do not fall on legal holidays. SB 5173 amends RCW 1.16.050, which defines legal holidays recognized by the state of Washington. RCW 1.16.050 previously granted “employees of the state and its political subdivisions” one paid floating holiday per calendar year in addition to the legal holidays mentioned above. SB 5173 adds two additional unpaid holidays for religious purposes. The bill took effect June 12, 2014.

Though the intent of the bill was straightforward, implementing it will pose some challenges for affected employers. Below, we discuss the likely scope and interpretation of the bill, along with guidelines for implementing it.

Which Employers Does SB 5173 Affect?

Unfortunately, this basic question is not clearly spelled out in the bill. SB 5173 provides that it covers “[e]mployees of the state and its political subdivisions, including employees of institutions of higher education who hold appointments or are employed under contracts to perform services for periods of less than twelve consecutive months.” It seems fairly clear that “political subdivisions” such as counties, cities and towns are encompassed by the bill. Less clear is coverage of entities such as fire districts, library districts, public transit agencies and other special purpose public entities. Because the courts have found that such entities are municipal corporations, which have been recognized as political subdivisions, we believe that most public sector agencies would be subject to the requirements of SB 5173. If in doubt, however, agencies should confer with their legal counsel to evaluate coverage under SB 5173.

What Kind of Absences Does It Cover?

SB 5173 defines the absences it covers in broad language: “a reason of faith or conscience or an organized activity conducted under the auspices of a religious denomination, church, or religious organization.” This language would likely encompass time off for the following:

  • Religious holidays and services: Obviously within the scope of the bill are absences for holy days; religious holidays when the employee is supposed to refrain from work; and religious holidays when there is a service, mass, or other religious event to attend.
  • Other activities organized by a church, even if not inherently religious: Given the breadth of the above language, it appears that almost any type of activity could qualify under SB 5173 as long as it is conducted by a church or other religious organization. This could include a baptism, a wedding, or even a trip to a pumpkin patch or a bingo party if organized by a church.
  • And, extending beyond organized religion: There was very little debate in the legislature about what SB 5173 means beyond allowing non-Christians to take off for their religious holidays. Thus, it is not clear what reasons of “conscience” means, but it's reasonable to interpret it as including employees who do not belong to organized religions.

Can Requests for Leave be Denied?

Yes. Requests for leave may be denied if the absence would impose an “undue hardship,” or if the employee's presence is necessary to maintain “public safety.”

The Washington Office of Financial Management (“OFM”) has circulated an emergency rule defining “undue hardship” under this new law, and will issue a permanent rule at a later date. The emergency rule provides that “undue hardship” means an action requiring “significant difficulty or expense to the employer,” and identifies the following factors that should be considered in making an undue hardship determination:

  • The number, composition and structure of staff employed by the employer or in the requesting employee's program;
  • The employer's financial resources;
  • The number of employees who have requested leave for the day(s) at issue;
  • The financial impact of the employee's absence, and whether the impact is greater than a de minimis cost to the employer in relation to the size of the employer or the requesting employee's program;
  • The impact on the employer, the employee's program or public safety;
  • Type of operations of the employing entity or requesting employee's program;
  • Geographic location of the employee or geographic separation of the particular program to the operations of the employer;
  • Nature of employee's work;
  • Deprivation of another employee's job preference or other benefit guaranteed by a bona fide seniority system or collective bargaining agreement;
  • Any other impact on the employer's operation or requesting employee's program due to the absence.

WAC 82-56-020. The emergency rule also requires that an employer make a case-by-case determination based on specific facts and circumstances, and states that a collective bargaining agreement or seniority system will not necessarily relieve the employer from making an undue hardship determination. WAC 82-56-030.

The “public safety” exception is likely to apply where an employee occupies a public safety position (e.g., police, fire, dispatch) and granting the leave request would require his or her shift to fall below minimum staffing levels. This is likely to be an issue on holidays like Christmas and Easter, where many employees may seek to take the day off.

What Kind of Leave Does SB 5173 Provide?

SB 5173 provides unpaid leave. Unlike other leave statutes, this bill does not affirmatively require employers to allow employees to use their accrued leave to cover a religious holiday absence. Thus, employers should consider how to address this issue under their policies. Some employers believe that fewer employees will actually use the leave if it is unpaid, and those employers will prefer policies under which accrued leave cannot be used to cover the absence. Other employers will prefer policies that allow employees to use accrued leave, based on the notion that it is better to draw down leave balances when an employee is absent. Where employees will be permitted to use accrued leave to cover a day off for religious reasons, the employer's policy should clearly address the requirements for use of paid leave.

How Should Employers Affected by SB 5173 Implement It?

Under the bill, “local government” employers must adopt guidelines implementing this leave entitlement by “ordinance or resolution” of their legislative authority. Other employers should adopt guidelines via personnel policies or procedures. Either way, the guidelines should set forth the process for employees to request a day off for a reason of faith or conscience.

We suggest the guidelines contain the following information regarding the process:

  • Who should the request be directed to? The request should go to the department director and a human resources professional.
  • How much advance notice is required? Employees should be required to give advance written notice of at least two weeks, unless the employee can demonstrate that such notice was not possible under the circumstances. Advance notice will allow employers to ameliorate any hardship that might be presented by an employee's absence.
  • What should the written notice contain? We suggest that the written notice include the name of the employee, the date that the employee seeks to take unpaid leave, the amount of unpaid leave (whole shift or partial shift), and a description of the reason for the leave that is sufficient for the employer to determine whether it qualifies under the new law.
  • What will be the process for granting the leave? We suggest that the department director be responsible for granting or denying the leave request, consulting with human resources if there are questions about whether the request qualifies. Human resources should be responsible for maintaining the leave bank and making deductions from it.

Note that unions may request bargaining of new leave guidelines. Although employers are being compelled by law to provide this new form of leave, a union may assert that the particular guidelines the employer has developed to implement the legal obligation trigger a duty to engage in impact bargaining.

Given that employers already had a legal obligation to accommodate the religious beliefs of employees, SB 5173 may not have a meaningful impact on many workplaces. However, this bill does create a more concrete entitlement of two days off per year and underscores the need for guidelines implementing this entitlement. To properly manage religious leave requests, it is important for public employers to adopt guidelines suitable to their workplace and to ensure that supervisors understand and comply with this new leave entitlement.

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