The New Jersey Law Against Discrimination (NJLAD) was amended, effective January 13, 2008, to require employers to accommodate their employees' sincerely held religious beliefs unless doing so would result in an undue hardship to the employer. See N.J.S.A. 10:5-12(q).

The amendment prohibits an employer from forcing an employee to forgo "a sincerely held religious practice or religious observance" such as a holy day or Sabbath. If an employee takes times off for a religious reason, the employer may, if practicable, require the employee to make up the time, or may count the time as paid leave other than sick leave.1 If the time off is not made up or counted as paid leave, for example, when the employee has already used up all accrued vacation and other paid leave, the time off may be counted as unpaid leave.

An employer is not obligated to grant time off or otherwise accommodate an employee's religious observance if doing so would result in an "undue hardship" to the employer. An accommodation is an undue hardship if the employer can show any of the following:

  1. That granting the accommodation will render the employee unable to perform the essential functions of his/her position.
  2. That it will require unreasonable expense or difficulty.
  3. That it will require unreasonable interference with the safe or efficient operation of the workplace.
  4. That it will require a violation of a seniority system.
  5. That it will require a violation of a collective bargaining agreement.

The factors to consider in determining whether an accommodation is an undue hardship include:

    1. The cost of the accommodation relative to the size of the employer, including costs of loss of productivity and of personnel coverage.
    2. The number of employees who require the accommodation.
    3. For employers with multiple facilities, the degree to which the separateness of the facilities — their geography, administrative and fiscal relationships to one another — makes the accommodation difficult or expensive.

    The NJLAD's duty to accommodate employees' religious practices appears to be more onerous than the duty under federal law. Under federal law, a religious practice need not be accommodated if the accommodation would represent more than a "de minimis" (i.e., minimal) burden on the employer. That appears to be a much easier standard for the employer to meet than the "undue hardship" standard under the new NJLAD amendment.

    The implications of this amendment are uncertain. For example, the amendment gives no guidance on whether the employer may question the "sincerity" of the religious belief and, if so, whether it may decline to accommodate a belief it deems to be insincere.

    New Jersey employers must, when faced with an employee's request for time off or some other accommodation of a religious practice, at least pause to consider the implications of the NJLAD amendment and should consult counsel for guidance.

    1 If the employee "makes up" the time off for a religious observance, and that make-up time occurs during hours that would normally entitle the employee to premium pay and benefits (such as for weekend or holiday work), the employee is generally not entitled to premium pay and benefits. However, the employer's overtime pay obligations remain unchanged.