Legal Eye: Holy holidays

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When employees want leave for religious holidays, Sabbath or prayer times, it can be difficult to tell what accommodations they are entitled to, and what is pushing too far – a mistake can be costly if a conflict leads to a court case.

Officially, the Canadian Human Rights Act requires employers to offer accommodation to the point of “undue hardship” – a line that could vary for each situation and company

“A look at specific cases can help set parameters of where this line of undue hardship might be drawn by the tribunal,” says human rights law expert Angela Rae, a partner at Filion Wakely Thorup Angeletti LLP.

In 2008 the Ontario Human Rights Tribunal looked at a case (Markovic v. Autocom Manufacturing Ltd.) where the employers asked the tribunal to determine whether its specific policies met its legal obligations.

Autocom Manufacturing had a policy in place outlining how employees could apply for leave for religious observance, and offered a number of options for how that time could be assigned.

Employees could, for example:

  • Make up the time at a later date
  • Work a secular holiday when the facility was operating
  • Switch shifts with another employee
  • Adjust their shifts for the week
  • Take it as paid vacation time; or
  • Arrange a leave of absence without pay

The tribunal found that “by providing a process for employees to arrange for time off for religious observances through options for scheduling changes, without loss of pay, Autocom’s menu of options is appropriate and consistent with the Code”.

A more recent Ontario case in April 2011 (Koroll v. Automodular Corporation) saw an employee take their employer to the tribunal after being refused paid leave for religious holidays. The employee observed Sabbath, from sundown Friday to sundown Saturday, and high holidays. His employer allowed him to change shifts and make up time, but did not offer paid leave for religious holidays unless he used vacation time.

The tribunal found that the employer was not required to offer paid leave, only that they were required to accommodate him in making up the time.

In a third case, Qureshi v. G4S Security Services, an applicant did not disclose his religious beliefs and required accommodations during the interview process. While in training he asked for an hour off to go to prayer; an HR manager told him to leave and removed him from the application process.

“I am satisfied the respondents failed in their obligation to undertake a reasonable process to consider the applicant’s request for accommodation,” the tribunal said.

“What you see in these cases is that it’s good to take an individual approach to accommodation. Employers need to assess what they might be able to accommodate,” Rae says.

Key points:

  • Employers are not required to offer paid leave for high holidays, but you do need to offer the employee a way to make up the time.
  • It’s important to offer a range of ways for the employee to have the time off they need, while still fulfilling their job requirements.
  • Even if a candidate does not explain their religious requirements before they start working you are still required to explore all the accommodation options.





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