Employee Rights and Religious Holidays
Natalie Fraser for The Lawyers Weekly
Many people don't know that in most cases employers in Canada must accommodate their employees' religious holidays. Both employers and employees need to understand their rights in this area.
Employers across Canada must provide eligible employees with a certain number of paid statutory holidays as stated in their province's employment legislation. Most jurisdictions recognize New Year's Day, Good Friday or Easter Monday, Canada Day, Labour Day and Christmas Day. Others include Thanksgiving, Remembrance Day and Boxing Day. While most of these holidays are secular in nature, two represent Christian holidays. The paid leave provided by the legislation eliminates the need for Christian employees to set up special holiday scheduling.
Human Rights Codes in Canada
Employees in Canada with other religious beliefs may need leave from work to celebrate their different holy days. Provinces and territories in Canada generally have Human Rights Codes which give every person the right to equal treatment with respect to religion. In cases involving religious holidays, the courts have interpreted this right as requiring Canadian employers to accommodate their employees' religious beliefs, unless doing so creates undue hardship. The Canadian Human Rights Act provides similar requirements for employers of federally regulated industries such as airlines, banks and telephone companies, as well as Canadian TV and radio stations.
The employer's duty to accommodate comes into effect when an employee's religious belief or practice conflicts with workplace requirements. This often involves scheduling problems created by the need for time off to celebrate religious holidays. Employers in Canada can satisfy the duty to accommodate religious leaves by arranging for employees to switch shifts, bank time, take compassionate leave or use floating days off. Other options include alternative arrival and departure times, staggered work hours or a variation of lunch breaks. In one case, an employee refused to work on Saturdays because, as a Seventh Day Adventist, she observed the Sabbath on this day (Ontario Human Rights Commission v. Simpson-Sears Ltd). Her employer fired her on this basis. The Canadian courts ruled that the requirement to work on Saturday represented "constructive discrimination" and ordered the employer to pay the employee her lost wages.
In another case involving the duty of employer's in Canada to accommodate its employees' religious leaves, three Jewish teachers took a leave from school to celebrate the high holiday of Yom Kippur (Commission scolaire regionale de Chambly v. Bergevin). The school board agreed to the leave but required that it be without pay. The Supreme Court of Canada ruled that the school calendar discriminated against Jewish teachers since the majority of their colleagues had their religious holy days recognized as holidays from work. The court further ruled that it would not represent an unreasonable burden on the school board to pay the Jewish teachers for their absence on Yom Kippur. While not universally applicable, the case clarifies the concept of the employer's duty to accommodate.
Employers' Undue Hardship
Employers in Canada don't have to accommodate religious leaves if doing so causes undue hardship. For example, Canadian employers can avoid accommodation if they can prove that their business cannot sustain the costs of doing so. While no formula exists for determining undue hardship, employers must have attempted all reasonable possibilities for accommodation before such a claim can succeed. Factors determining whether the expense of accommodating a religious leave creates undue hardship include the size of the employer's business, the number of people requiring accommodation and the availability of external sources of funding.
Employers in Canada have had little success in claiming undue hardship based on difficulties in adjusting work schedules. Since most Canadian employers regularly make scheduling changes to accommodate illness or vacations, they will have trouble claiming undue hardship in rescheduling shifts to accommodate religious leaves.
Natalie Fraser was a practicing lawyer in Whitby, Ontario for seventeen years and is now a freelance legal writer. She often writes for The Lawyers Weekly.