• Funeral Leaves Are Not Always What They May Seem
  • August 14, 2013 | Author: Larry S. Perlman
  • Law Firm: Foley & Lardner LLP - Miami Office
  • We often counsel employers to be wary of employment law considerations in situations that may not seem obvious at first glance. For example, prohibiting employees from using certain language on social media sites has proven to be a problem, even for non-union employers. Employers also thought they were on firm ground by refusing to hire candidates with recent criminal convictions until the EEOC weighed in.

    Continuing with this trend, the U.S. Seventh Circuit Court of Appeals issued an opinion last month that should cause employers to rethink the potential discriminatory impact of even routine personnel management decisions. Who would have ever thought an employer has to consider obligations to make religious accommodations when deciding whether to permit employees to take bereavement leave?

    Most jurisdictions do not require employers to provide any type of bereavement leave - paid or unpaid. However, under Title VII, an employer is required to reasonably accommodate an employee’s religious beliefs and practices, unless doing so would cause undue hardship on the employer’s business. In this regard, an employer’s obligations are much like those under the ADA. Typical accommodations to religious practice include modifying a dress code in order to permit an employee to wear religious apparel, allowing an employee to take breaks in order to engage in prayer, or altering work schedules to grant days off for religious holidays.

    In the case decided last month, Adeyeye v. Heartland Sweeteners, the Seventh Circuit extended the concept of religious accommodation to possibly cover attendance at a relative’s funeral. Specifically, in the Adeyeye case, an employee requested several weeks’ unpaid leave in order to participate in his father’s funeral in Africa. Most employers, like Heartland Sweeteners, grant only a few days off to attend a funeral of a close relative. Here, the employee sent two letters to the company, explaining that it was mandatory for him to attend this funeral, and that unless he performed certain rituals, including slaughtering five goats, “death will . . .come and take away” his and his sibling’s lives. This request was denied, and the company fired the employee after he left and went to the funeral anyway.

    The trial court dismissed the employee’s subsequent religious accommodation lawsuit, agreeing with the employer’s argument that it had not been given any notice that a religious issue was involved. However, the appeals court reversed the trial court’s decision, sending the case back to the trial court. In doing so, the Seventh Circuit court concluded that a jury may find that the two letters provided sufficient notice of a religious accommodation request. According to the court, the letters’ references to compulsory attendance at a “funeral ceremony” and “funeral rite” and the reference to potential death of family members if the ceremony was not performed sufficiently conveyed a religious aspect to the request. The court concluded that although these religious beliefs may not be as familiar as some modern American practices, the law protects all sincerely held religious beliefs, and if the company had questions as to whether the request was religious, it could have asked the employee for further explanation.

    Although the trial court’s ultimate treatment of this case remains to be seen, employers should take note of the issues raised by the court’s finding an association between religious accommodation and a request to attend a funeral. For example, when an employee asks for time off to attend a funeral, to what degree can or must an employer inquire as to the nature of the funeral and the employee’s potentially spiritual reasons for wanting to attend? What about the “modern American practices” referred to by the court - is there any assumption that more “familiar” funerals are by definition religious? Likewise, the case described a situation where the employee wanted to attend his father’s funeral. It is unclear how this holding would impact an employee’s desire to attend a religious funeral for a non-family member. As these questions are far from settled, employers should proceed with caution when evaluating bereavement leave policies and individual employee requests for time off due to a death.