In recognition that the holiday calendar for many religions is based on the lunar calendar rather than the Gregorian calendar, the Washington State Legislature recently amended the statutory definition of “Legal holidays and legislatively recognized days” under RCW 1.16.050. Substitute Senate Bill 5173 (the “Act”) grants public employees the right to two unpaid holidays per calendar year:
for a reason of faith or conscience or an organized activity conducted under the auspices of a religious denomination, church, or religious organization.
The Act applies to public employees, including employees at public schools, institutions of higher education, and state-funded workforce training programs.
In addition to typical workload and staffing concerns employers face when employees are absent from work, the Act creates special challenges for public employers throughout the state, including how to determine when a request for a holiday is covered by the Act, how to avoid abuse by employees, and when a request for a holiday can be denied. Unfortunately, the Act provides little guidance on these issues.
The Act seemingly grants employees wide discretion in how they chose to use their two unpaid holidays. The term “faith or conscience” is undefined by the Act and any expression of faith or conscience may be sufficient. Moreover, the holiday entitlement is not limited to time off for specific holidays or events. The Act thus creates opportunity for employee abuse.
Presumably, the unpaid nature of the holiday will minimize actual instances of abuse. Moreover, public employers may be able to further minimize abuse by developing an appropriate request process and form that requires a certification of the basis for the request. The Act allows the employee to “select the days on which the employee desires to take the two unpaid holidays after consultation with the employer pursuant to guidelines to be promulgated by rule of the appropriate personnel authority, or in the case of local government by ordinance or resolution of the legislative authority.” [emphasis added] This provision closely tracks, and repeats the italicized “guidelines” language from, the paid holiday provision in RCW 1.16.050. Thus, employers should either modify existing paid holiday guidelines so that they also address unpaid holiday requests or adopt separate but similar guidelines that will be used to review and approve requests for unpaid holidays under the Act.
Although public employers may adopt an approval process for unpaid holiday requests, an employee’s request to take off “specific days for a reason of faith or conscience, or an organized activity conducted under the auspices of a religious denomination, church, or religious organization” must be granted unless doing so would cause “undue hardship” or the employee is necessary to maintain public safety. “Undue hardship” is not defined by statute, and the Act tasks the director of financial management to establish this definition by regulation; however, the term has been narrowly construed in the context of other Washington employment statutes. Regardless, any request and approval guidelines should establish how these factors will be handled.
A final complication that should be addressed in public employer guidelines is whether an employee can elect to use vacation time or other paid time off while exercising his or her rights under the Act. The Act requires that an employer provide two unpaid days off per calendar year, which would appear to prohibit an employer from requiring an employee to use paid leave for the holidays. It is unclear, however, whether an employee can request to use paid time off concurrent with the unpaid holiday. This issue should not only be addressed in the relevant unpaid holiday guidelines but also may require modification of paid time off policies.
The Act goes into effect on June 12, 2014. Public employers must, therefore, carefully consider how they would like to address this issue and put appropriate interim guidelines in place. If subsequent regulations are adopted, these guidelines should then be refined to assure compliance with this new holiday requirement.