When it comes to paid time-off policies for religious holidays outside of Christmas and Easter, can provincial governments do more to ensure all employees receive two paid days off to observe their chosen faith?
While Andrew Zabrovsky, an employment lawyer with Hicks Morley Hamilton Stewart Storie LLP, says the government could make changes to the Employment Standards Act and require employers to provide “miscellaneous” paid leave days that could be used for any number of circumstances, including religious holidays, he doesn’t believe this is likely to occur.
During the coronavirus pandemic, several provinces’ moves to legislate three paid days off for infectious disease emergency leave were seen as significant breakthroughs, he notes. And in the last three years, there’s been a significant push by opposition parties in Ontario for legislated paid sick days, which has yet to come forward. “Sick absence is a very significant issue for employers, so it’s likely something the government would address before it addresses general wellness or religious holidays.”
When it comes to employees’ requests for accommodations for religious holidays, Zabrovsky highlights the distinction between what the law says and what the Ontario Human Rights Commission suggests it should be. The commission’s approach suggests employers recognize two religious holidays for any other faith outside of mainstream Christianity; however, the Ontario Human Rights Tribunal has said, in terms of case law, employers should provide workers with a menu of options.
Zabrovsky usually advises employers to follow the menu of options, essentially trying to give employees the time off they need and to find a way to make up that time with pay. In some workplaces, it may be as simple as having employees switch the days they work. “This works for employees who are shift workers or who work in flexible workplaces, in . . . that if the work doesn’t need to be done Monday to Friday, it could be done on a weekend, at home remotely or maybe they can stay late other days of the week.”
The reasoning behind the menu of options is that arbitrators and adjudicators have recognized it’s unfair that Christian holidays are federally mandated time off, while people who practice other religions are required to take their holidays off unpaid, says Zabrovsky. However, there have been cases where arbitrators and adjudicators have said allowing individuals the time off without penalty is sufficient.
“That’s why employers are obligated to accommodate employees’ requests in making it so they don’t lose pay if they take those days off. At the same time, the law . . . typically [recognizes] that [employees] only get paid for the time that [they] work, unless there is a provision in [their] contract that allows for paid time off.”
Another option is allowing employees to make use of benefits that may exist under their employment contract or collective agreement so that they don’t lose pay — allowing them to take a vacation day or sick day or lieu time or, in union cases, miscellaneous leave.
There’s an inherent unfairness, says Zabrovsky, noting the Human Rights Commission’s policy on accommodation strives to make things as fair as possible. Even if employers were to provide two paid days off to employees who seek to observe religious holidays outside of Christianity, he notes that policy would still be unfair because employees who are agnostic and observe no religion wouldn’t receive the benefit of this policy either.
“We’re never going to achieve absolute fairness, but I think the menu of options approach does strive to achieve the key object, which is that an individual can observe their faith without penalty.”