The Puerto Rico Department of Labor and Human Resources (“Labor Department”) released regulations pertaining to an employer’s obligations and duties upon being notified by an employee or candidate for employment of a request to reasonably accommodate religious practices under the Workplace Flexibility Transformation Act, Act No. 4 of January 26, 2017 (“WFTA”)1. Relevant to these regulations, the WFTA imposed on employers an obligation to reasonably accommodate religious practices if an employee so requests in writing, provided that such accommodations are not unduly burdensome or entail an excessive difficulty to the employer.
The regulations issued by the Labor Department establish a series of definitions and detail the procedure that must be followed when an employee requests accommodation of his/her religious practices. The employee seeking to obtain a religious accommodation must first make the request to the employer in writing2. The written request must, at the very least, provide a description of the religious activity, the accommodation requested, and its frequency.
Pursuant to the regulations, the employer shall consider and provide a definitive written response to the request within seven working days, unless the religious practice and/or attendance at the religious service is to take place before then. The request shall be presumed denied if no response is provided within the 7-day term. The regulations further provide that the employer may schedule a meeting with the employee to discuss alternatives to the accommodations sought. The regulations require that both parties employ good-faith efforts to agree to the accommodation of the employee’s religious practice and/or attendance at the religious service.
An employer’s denial of a request for religious accommodation must be issued in writing and must set forth the reasons supporting such denial. Furthermore, the employer is obligated to state why providing the requested accommodation, or an alternate one, constitutes an excessive hardship or difficulty. Unsupported denials as well denials based on the premise that other employees could request the same accommodation, shall not be considered valid. Employers may not deny requests for religious accommodation in retaliation and/or as a means of discipline.
The regulations define “excessive difficulty” as the employer’s clear and detailed demonstration that accommodating the religious practices and/or an employee’s (or candidate) attendance to a religious service, will entail major costs or create dangerous working conditions. The fact that the employee or candidate cannot perform his/her duties shall constitute excessive difficulty. Pursuant to the definition provided in the regulations, the employer shall prove that any accommodation would be unreasonable in light of the circumstances.
Pursuant to the regulations, an employee may file an administrative charge before the Bureau of Labor Standards of the Department of Labor (DOL) in connection with the denial of a request for reasonable accommodation, the failure to reach an agreement with the employer and/or an adverse employment action taken against the employee as a result of having made a request for accommodation. Upon being notified of the administrative charge, the employer must file a response within ten (10) days. Thereafter, the charge will be referred to the Office of Mediation and Adjudication (OMA) of the DOL. Employers found to have failed to accommodate an employee’s religious beliefs face monetary fines ranging from $1,000 to $5,000 and may be ordered to provide the requested religious accommodation. Note that this administrative grievance process is not a pre-requisite or condition to filing a judicial complaint.
If you have any questions or concerns, or simply wish additional information regarding the aforementioned regulations, please contact any of the attorneys from our Labor & Employment Practice Group at your convenience.
1The Regulations have not yet been filed with the Department of State. As per Article XI, the regulations will be valid 30 days after having been filed before the Department of State.
2It should be noted that under federal law an employee may request religious accommodations verbally.
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