By: Francine Foner, Esq. and Ty Hyderally, Esq.

Can an employer be required to allow an employee a reasonable accommodation of working from home because of the employee’s sincerely held religious belief which conflicts with the employer’s policy that employees working on-site undergo mandatory Covid-19 testing? Possibly. The New Jersey Appellate Division reviewed this issue in the matter of In re Whitehead, 2022 N.J. Super. Unpub. LEXIS 2591, *20-21 (NJ App. Div.  Dec. 22, 2020).

In March 2020, Carolyn Whitehead (“Ms. Whitehead”) was employed by the City of East Orange (the “City”) as an Assistant Zoning Officer when the Covid-19 Pandemic resulted in the City suspending on-site work for some of its employees.  The City permitted Ms. Whitehead to work remotely from home four days per week, and required her to work one day per week on-site. Id. at *4-6. Approximately 3 ½ months later, the City required that employees return to working entirely on-site, and issued a directive which stated that “[a]ll employees will be pretested for COVID-19 and test results must be negative before returning to” the mandated on-site work. Id. at *5.

Ms. Whitehead did not return to work based upon her assertion that mandatory COVID-19 testing violated her sincerely held religious belief, and requested to return to work on-site without COVID-19 testing. Id.  The City denied Ms. Whitehead’s request and provided her with guidance from the United States Equal Employment Opportunity Commission (“EEOC”) explaining that an employer may require a “viral test” for COVID-19 as a condition of returning to work. The City also advised Ms. Whitehead that if she refused to get tested, she would be subject to disciplinary action.

Ms. Whitehead continued to object to the City’s mandatory COVID-19 testing, for which was then suspended without pay and ultimately terminated, effective July 23, 2020, following an administrative hearing. Ms. Whitehead then appealed to the Civil Service Commission (“Commission”), which referred the matter to the Office of Administrative Law (“OAL”).  In the OAL proceeding, the City argued that the EEOC and the Centers for Disease Control (“CDC”) supported return-to-work COVID-19 testing and that the tests did not constitute a “medical examination.” Id. at *6-7. However, Ms. Whitehead maintained that the City’s testing requirement violated her right under 42 U.S.C. § 2000e-2(a)(1) (“Title VII”) to a reasonable accommodation based upon her sincerely held religious beliefs.

The Administrative Law Judge (“ALJ”) recommended granting the City’s motion for a summary decision affirming the City’s suspension and termination of Ms. Whitehead and dismissing her appeal, concluding that “‘[Ms.] Whitehead’s requested accommodations for her religious beliefs pose an undue hardship’ and are therefore not required under Title VII; [Ms.] Whitehead’s return to work without testing ‘may pose a direct threat to the health of other employees and their families’; and [Ms.] Whitehead’s refusal to take a COVID-19 test ‘is inconsistent with other employees[’] right to work in a safe environment.’” Id. at *10-11.  The Commission adopted the ALJ’s findings and affirmed the City’s suspension and termination of Ms. Whitehead and dismissal of her appeal. Ms. Whitehead then appealed from the Commission’s final decision and Order to the New Jersey Appellate Division.

The New Jersey Appellate Division initially observed that “‘To establish a prima facie case of religious discrimination’ under Title VII employees must show: they hold a sincere religious belief that conflicts with a job requirement; they informed their employer of the conflict; and they were disciplined for failing to comply with the conflicting job requirement.” Id. at *13-14.  Notably, the City did not dispute that Ms. Whitehead’s objection to its mandatory COVID-19 testing was based upon her sincere religious beliefs. Thus, the New Jersey Appellate Division found that Ms. Whitehead had established a prima facie case of religious discrimination under Title VII.

The Appellate Division further opined that because Ms. Whitehead had established a prima facie case of religious discrimination, “the burden shifts to the employer to show either it made a good-faith effort to reasonably accommodate the religious belief, or such an accommodation would work an undue hardship upon the employer and its business.” Id. at * 15-16 (citations omitted). The Court then went through the factors a court should consider to determine whether an employer has engaged in a good faith effort to find a reasonable accommodation for an employee’s sincere religious belief that conflicts with a job requirement, and observed that “[e]xamples of undue hardships include negative impacts on the employer’s operations, such as on productivity or quality, personnel and overtime costs, increased workload on other employees, and reduced employee morale.” Id. at *16-17.

However, the Appellate Division found that, although the ALJ stated that the City should have reasonably accommodated Ms. Whitehead by allowing her to work remotely until she could return to work without on-site testing, he nonetheless failed to address Ms. Whitehead’s argument that the City had failed to accommodate her, or whether accommodating Ms. Whitehead by allowing her to work from home would pose an undue hardship on the City. “Instead, after acknowledging [Ms.] Whitehead’s claim [that] she was entitled to work from home as a reasonable accommodation, the ALJ incongruously concluded it was ‘unreasonable to expect [the City] to mandate . . . high-risk employees to stay at home so [Ms.] Whitehead can come into work, which is no guarantee that [Ms.] Whitehead could transmit COVID-19 to low-risk employees simply by being in the office.’” Id. at *10.

The Appellate Division therefore reversed the Commission’s dismissal of Ms. Whitehead’s claim that the City failed to provide her with a work-from-home accommodation in response to her religious objection to the COVID-19 testing requirement, in violation of Title VII. However, because the written record did not contain any factual or legal argument in favor of or against this issue, the Appellate Division explained that it had no record upon which to make a determination of the issue, and thus remanded the matter for further proceedings, permitting the parties on remand “to assert any and all factual and legal arguments in support of their respective positions concerning the claim.”  Id. at *20-21.

Although the ultimate determination in this case remains to be seen, the opinion of the New Jersey Appellate Division confirms that upon establishment of a prima facie case of religious discrimination under Title VII, the employer must show that it either made a good-faith effort to reasonably accommodate the employee’s sincere religious belief which conflicts with the employer’s job requirement, or that such an accommodation would work an undue hardship upon the employer and its business. Further, where an employer claims that the accommodation will cause it an undue hardship, this needs to be established in the record, not merely assumed or argued as a foregone conclusion.

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