Holidays vs. Holy Days: What you Need to Know about Religious Accommodation
We are fortunate to live in a proudly multi-cultural country, with workplaces comprised of people from all corners of the globe. Even with this diversity, most workplaces are secular in nature: there are no affiliations to any particular cultural group, religion, or creed.
At this time of year, it is not uncommon for employees to request time away from work to celebrate religious holy days other than Christmas. However in Ontario (and every other province and territory in Canada), Christmas, which is clearly a Christian holy day, is given statutory significance under the Employment Standards Act: Christmas is a public holiday and employees are entitled to take the day off with pay.
Under Ontario’s Human Rights Code (the “Code”) an employer has a duty to accommodate an employee’s creed and religion to the point of undue hardship. Creed is loosely defined as ‘a professed system and confession of faith, including both a person’s beliefs and observances or worship.’ One way in which an employer can accommodate an employee’s religion or creed is by providing time away from work for religious observances. And human rights laws are clear that an employee should have options for the time away without necessarily losing wages or having to use vacation time.
In light of the above, the question then becomes whether an employer must provide religious holy days as paid time away from work in addition to the standard Christmas holiday for an employee who does not celebrate Christmas?
The Supreme Court of Canada offered guidance to this question in the case of Chambly v. Bergevin. In the case, a school calendar required Jewish teachers to work on their holy days. The teachers were allowed to take time off to observe the holy days, but only as leave without pay. The teachers took the position that the calendar was discriminatory and argued that they should be able to take their holy days as time away from work with pay. The Supreme Court acknowledged that the calendar was based on traditional Catholic holidays (e.g. paid time-off work for Christmas and Good Friday), and agreed that the calendar was discriminatory in its effect because it required non-Christian teachers to take additional time away from work to celebrate their holy days. The Court further found that the school board was required to provide the teachers with paid time away from work for the holy days, but primarily because the school board’s collective agreement made allowances for up to 3 days of paid leave for other personal circumstances.
Ontario’s Employment Standards Act (the “ESA”) offers alternatives, which may enable employers to resolve this issue. Though an employee is entitled to Christmas as a day away from work with public holiday pay, the ESA permits alternate arrangements *in writing* between an employee and employer, so an employee can work on Christmas and receive:
- public holiday pay plus premium pay (which is typically pay of time-and-a-half) for the hours worked on Christmas; or
- the employees regular rate of pay for the hours worked on Christmas, plus another day off (called a “substitute” holiday) with public holiday pay (which is typically the employee’s regular pay and not time-and-a-half).
Figuring out an appropriate accommodation solution for employees during the holidays can be difficult and confusing. In some workplaces, it may be necessary to provide holy days as paid time away from work. However, for other workplaces, the additional paid time could be seen as ‘hardship’ under the Code and other accommodation solutions might work.
Contact us if you have questions regarding workplace accommodation or need to develop an appropriate accommodation arrangement for an employee who observes another holy day other than Christmas.