Business Law 101 / DECEMBER HOLIDAYS

By Albert L. Kelley

After Thanksgiving, businesses start looking to the December holiday festivities. With Christmas, Chanukah, and Kwanza, many religions are in full celebration. As much as people with strong religious beliefs want to participate in these celebrations, and while many people believe the law requires them to be allowed to celebrate, this is not the case.

The First Amendment of the United States Constitution states that “Congress shall make no law respecting establishment of a religion, or prohibiting the free exercise thereof”. This is what guarantees all of us the freedom of religion. Every American is granted the right to believe in the God of our choice, or the freedom not to believe in any God. The purpose of this amendment is not to guarantee our right to worship whenever we want; it is to prevent government from trying to promote one religion over another. The government cannot tell us what to believe or how to believe in it. Yet, the amendment is not an absolute right to practice the tenets of your religion. Some followers of Santeria have tried to interpret the law to allow ritual sacrificing of animals. Similarly, some Rastafarians have tried to interpret the law to allow the routine smoking of marijuana. Many religious groups believe in the practice of polygamy. Yet all of these practices have been struck down as violating the laws of the various state governments. This seems like a conflict, but a conflict that is easily explained.

While the Constitution prevents the government from restricting our religious practices, it does not restrict them from passing general laws for our safety. The legislatures have determined that certain activities are illegal, and preclude anyone from performing them, regardless of religious belief. Smoking marijuana is illegal for everyone, not just Rastafarians (ignoring medical marijuana issues). Sacrificing animals is illegal for everyone, not just Santarians. Polygamy is illegal for everyone, regardless of religious belief. Therefore, the law does not discriminate against a religion.

What about practices that are legal in all other means? What about simply attending church for midnight mass? Of course this is legal, and an individual has a right to attend. But it doesn’t always mean they will be able to. Surprised? Let me explain.

Under the Civil Rights Act, employers are precluded from discriminating against employees on the basis of religion. Employers must take reasonable steps to protect their employees’ religious beliefs and practices. Many employees over the years have tried to interpret this law to require their employer to give them time off of work to worship. It has been widely held that this is not the case. While many practicing Christians feel their religion compels them to attend Christmas service, the employer is not required to give them the time off if it is not reasonable to do so. If the employer will be left short-handed or if there are other over-riding concerns (such as other employees with more seniority requesting the time off) the employer can require their employees to work, even through the holiday. While the employer should make some effort to honor his employees’ religious beliefs and practices, the employer has no obligation to make more than a reasonable effort. If the religious practice would create a hardship on the employer, the employer may lawfully refuse to allow the employee to exercise their practice.   Also, if the religious belief would interfere with the religious beliefs of other employees, the employer need not accommodate it.

Finally, for any religious belief or practice to be upheld, it must be valid. A person cannot just create a religion just to get time off of work or to create rights that they otherwise would not have. What makes a religious belief legitimate is another question for another day.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” “Basics of Florida’s Small Claims Court” and “Basics of Florida’s Landlord-Tenant Law” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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