Federal Workers Can Telework for Religious Reasons, DOJ Says (1)

Federal workers can ask to work from home as part of religious accommodations under existing guidelines and recent US Supreme Court decisions addressing faith-based exemptions to workplace policies, the Department of Justice’s Office of Legal Counsel said in a memo to the Equal Employment Opportunity Commission.

Federal guidelines about religious liberty and expression should be enforced in a way that does not preclude workers from using “situational telework” options, Lanora Pettit, deputy assistant attorney general at the OLC, wrote in the new 15-page memo issued Thursday.

This clarification came in response to a request from the EEOC, as the Trump administration has pushed for federal workers to return to work in person. The Commission, under Republican Acting Chair Andrea Lucas, has made enforcement of religious discrimination a priority.

Pettit concluded that President Bill Clinton’s 1997 Guidelines on Religious Exercise and Religious Expression in the Federal Workplace and a 2017 memorandum regarding federal protections and religious liberty may “generally be enforced” to allow for telework accommodations.

However, agencies “should disregard” those documents’ references to the “de minimis” standard for determining an undue hardship posed by an accommodation and the “appearance of official endorsement” test for assessing Establishment Clause violations due to recent high court rulings, she said.

High Court Precedent

The Supreme Court’s 2023 Groff v. DeJoy decision held that employers must reasonably accommodate a worker’s religion under Title VII of the 1964 Civil Rights Act unless doing so “would result in substantial increased costs” and cause an undue hardship to their business.

The high court’s 2022 Kennedy v. Bremerton School District opinion reinforced protections for personal religious expression in public spaces, including for public employees. It means that agencies cannot restrict religious expression merely because it creates an “appearance of official endorsement,” the memo said.

But it doesn’t mean that all religious expression in the workplace must be permitted, Pettit added. “Nor does it mean that the Constitution imposes no limits on religious conduct or expression by government employees.”

“Agencies should thus adhere to the common-sense proposition that ‘the workplace is for work, and an agency may restrict any speech that truly interferes with its ability to perform public services,’” and activities that are coercive “must still be prohibited,” the memo said.

As for remote work accommodation, the memo explained that agencies retain discretion to permit occasional telework for religious observances, “provided the arrangement does not create undue hardship.”

The accommodation, though, will be fact-specific to each worker’s situation and may not be “always appropriate,” such as if employees are unable to telework effectively “given the nature of their duties, performance history, or other carefulness,” it said.