Is an employer obligated to accommodate religious holidays?

Introduction

An employer has a duty to accommodate an employee’s creed to the point of undue hardship. As such, an employer may have a duty to provide time off for religious holidays. This is reflective of the values and commitments contained in the Canadian Constitution, which encapsulates the right to be free from discrimination based on religion/creed. Canada is a secular, democratic and multi-cultural nation that prides itself on the tolerance of different cultures, ethnicities, races, religions, et cetera.  

However, the Chief Justice of the Supreme Court of Canada stated in Chamberlain v. Surrey School District No. 36 [2002] 4 S.C.R. 710, 2002 SCC 86: 

 “… The demand for tolerance cannot be interpreted as the demand to approve of another person’s beliefs or practices. When we ask people to be tolerant of others, we do not ask them to abandon their personal convictions. We merely ask them to respect the rights, values and ways of being of those who may not share those convictions. The belief that others are entitled to equal respect depends, not on the belief that their values are right, but on the belief that they have a claim to equal respect regardless of whether they are right. Learning about tolerance is therefore learning that other people’s entitlement to respect from us does not depend on whether their views accord with our own. ” 

As with all human rights, there are limitations. For example, if a right interferes with the human rights of others. 

What is Creed?

The Human Rights Code (“the Code”) does not define “creed.” However, courts and tribunals have often defined the term as religious beliefs and practices. It’s important to remember, however, that creed may also include non-religious belief systems. For example, beliefs that substantially influence an individual’s identity, worldview or way of life. 

The Courts have described the following characteristics as being relevant to a determination of whether or not a belief system is considered a creed under the Code.   

- Is the creed sincerely, freely and deeply held?

- Is the creed integrally linked to a person’s identity, self-definition and fulfilment?

- Is the creed a particular and comprehensive, overarching system of belief that governs one’s conduct and practices?

- Does the creed address the ultimate question of human existence, including ideas about life, purpose, death, and the existence or non-existence of a Creator and/or a higher or different order of existence?

- Does the creed have some “nexus” or connection to an organization or community that professes a shared system of belief?

An employer should accept in good faith that a person practices a creed unless there is a significant reason to believe otherwise, based on the factors set out above. 

The duty to accommodate Creed beliefs and practices

To determine whether or not a creed right has been engaged an employer may require additional information. As this can be a sensitive and private matter, the employer should only seek further information if required. As a general rule, an employer should:

 - Accept requests for accommodation in good faith unless there is evidence that the request is not sincere or genuine;

- Limit requests for information to those that are reasonably required to establish the existence of the right and the employer’s duties, to assess the needs, limitations or restrictions and, to develop and implement the accommodation;

- Maintain privacy and confidentiality throughout the process and ensure that information is only shared with those who need the information in order to develop and/or implement the accommodation. 

To circumvent this obligation, an employer must establish that the accommodation would cause undue hardship. This is a difficult standard to meet and in most instances, a large employer would be unable to establish undue hardship on an individual basis and would be expected to accommodate an employee on the basis of a sincerely held belief/creed.

Adverse effect discrimination 

An employee may be discriminated against by way of “constructive” or “adverse effect discrimination.” Section 11 of the Code prohibits discrimination that results from qualifications, requirements or factors that may appear neutral but nonetheless have adverse effects on an individual. A violation of the Code would be established unless the qualification, requirement or factor is reasonable and bona fide in the circumstances and cannot be accommodated on account of undue hardship. An employer therefore has a duty to accommodate to the point of undue hardship if:

- An individual’s creed right is adversely affected by a standard, rule, requirement, qualification or factor implemented by the employer;

- The individual has a sincerely and honestly held belief;

- The belief is connected to creed. 

Appropriate accommodations for Religious Holidays

An employer should offer the employee options to have the time off for a sincerely held religious or creed based belief without losing wages. However, not every accommodation on the basis of religious belief requires time off as not every religious activity demands it.

Accommodation options may include special or compassionate paid leave, scheduling changes, overtime, use of lieu time, compressed work week arrangements and, if the employer operates on a statutory holiday, working on the holiday (subject to the pay requirements for work on statutory holidays set out in the Employment Standards Act). An employer should provide the employee with options. Forcing an employee to use vacation time instead of exploring alternative options could amount to discrimination.

For example, attending the synagogue on Rosh Hashanah or the mosque for Eid is likely to be considered a protected religious practice whereas, attending a social event hosted by a religious group is unlikely to be a protected practice. A social event is unlikely to be sufficiently connected a religious or creed based practice or observation. Other considerations may include alternative options that respect the religious practice but don’t meet the employee’s specific request. For example, if a Christian employee sought accommodation to attend a midnight Christmas Mass. The employee would presumably have the right to attend a Christmas Mass as part of their religious belief but the employer may wish to discuss alternative times to meet the employer’s operational needs allowing the employee to attend mass at a different time. Each request, however, should be considered on a case-by-case basis. Other relevant factors may exist that should be considered before making a determination. Further, an employer should be conscious of the fact that different individuals practicing the same religions or creed based practices may have different perspectives on holiday celebrations. For example, some may not feel comfortable taking a day off to celebrate their religion. Individual choices and/or perspectives of employees should not be relied upon to reject or decline a legitimate request for accommodation.