Though Canada has only two statutory religious holidays, Christmas Day and Good Friday, some Canadian employees may be seeking to take time off for other religious holy days. So how are employers required to accommodate them?
Ontario’s Human Rights Commission notes “employers have a duty to accommodate an employee’s creed to the point of undue hardship, including by providing time off for religious holidays,” according to its website. It further specifies that this time should be provided so that the employee doesn’t lose wages or vacation time. The options, according to the commission, include: “special/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 a statutory holiday.”
Human rights commissions across other Canadian jurisdictions echo this advice.
Undue hardship is a tricky concept, says Kathryn Bird, a labour, employment and human rights lawyer at Hicks Morley Hamilton Stewart Storie LLP in Toronto. “The guiding light from the Supreme Court of Canada is that [undue hardship is] not [an] impossibility, but it’s close,” she says.
As Canada continues to become more diverse, employers are definitely seeing a need to study up on religious considerations, says Bird, noting that most mid- and large-sized employers will have employees from a variety of faiths. “And so employers are having to become more aware of the different faith practices and understanding that religious adherence is a protected ground under the human rights code and they need to accommodate that.” As such, Bird encourages employers to have an accommodation policy in place that covers off religious considerations without requiring a separate policy.
For employees seeking time off for religious reasons, typically “we’re talking about employees needing to take full days off, employees needing to take time off during the day to pray, or employees that need to alter their work schedule with respect to where they can be or what they can be doing at certain times of the day,” says Bird. One example would be people leaving work early because they’re fasting for religious reasons and need to be home before sundown in order to prepare their evening meal, she notes.
However, ensuring adherence to the human rights code doesn’t necessarily mean granting time off for every religious-related activity, notes Bird. To understand whether an activity is protected has to do with “whether or not the activity assists you in your connection to a greater being or a religious figure you’re looking to connect to,” she says.
As a distinction, attending church on Sunday would be protected, whereas a church social function wouldn’t be, she says. “You’ll see people trying to protect things like religious lunches, teaching at a religious school, but not actually about issues of faith, sports events affiliated with churches, communities building Habitat for Humanity projects [with a religious group], things that are good things to do, things that are related to your religious faith, but that aren’t a protected ground because it’s not about your religious worship,” says Bird.
She notes, however, that employers should try to understand the significance of a religious activity in order to make an educated judgment call, since what could resemble merely a meal to someone outside a specific faith may carry more significance to those practising it.
“Whatever it is you’re seeking to protect must advance your connection with God,” she adds.