Canadian Employment Law Today

March 20, 2019

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Answer: Short answer for employers: si- lence is golden. Employees are protected under human rights legislation from dis- crimination based on their creed, which protects their religious values whether they are part of a well-known faith or a lesser known one. In Ontario, the province's Hu- man Rights Commission's policy on accom- modating creed states "the focus is on the person's sincerely held personal or subjec- tive understanding of their creed. ey do not need to show that their belief is an es- sential or obligatory element of their creed, or that it is recognized by others of the same creed (including religious officials)." In other words, an employer's skepticism regarding the employee's level of observance is usually irrelevant. Some faiths take a large number of holi- days at certain times of the year, but employ- ees still need to be accommodated based on these beliefs. is does not mean, as some believe, that everyone is entitled to two paid religious days off in order to align with Ju- deo-Christian statutory holidays. However, employers should accommodate employees by allowing them to observe their religious obligations without penalty as a matter of — pardon the pun — good faith. is could involve, for example, allowing the employee to accrue overtime and then use it to observe a religious holiday. Forcing employees to use vacation days for religious holidays is gener- ally not advisable. In a human rights case from Windsor, Ont., back in 2015, two teenage siblings who were employed as farmhands were dis- criminated against for celebrating a holiday in their Christian Mennonite faith called Himmilfaurt [sic], which fell on a day when the employer prohibited taking time off. Only one sibling was scheduled to work on the holiday, but both were terminated for taking the day as a religious observance. One claimed the termination was reprisal for observing the holiday, and the other said it was reprisal for associating with their sib- ling. e employer claimed that she had 11 employees celebrating the holiday, some of whom agreed to work through it, and many others opted to come in at midnight instead to making up for the missed hours. In the end, the employer was still ordered to pay each of the siblings for injury to their dignity, feelings, and self respect, as well as for lost wages until they found new employ- ment. e employer was also made to take online human rights training, and to post information cards about the code through- out the workplace. Have a question for our experts? Email with Stuart Rudner Ask an Expert RUDNER LAW TORONTO Canadian HR Reporter, a Thomson Reuters business 2019 2 | March 20, 2019 Canadian HR Reporter, a Thomson Reuters business 2019 WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Canada Professional Development Centre's live and on-demand webinars discussing topics such as pay equity audits, marijuana in the workplace, and dealing with sexual harassment in the #MeToo era. To view the webinar catalogue, visit Answer: Short answer — yes. An employer can determine an employ- ee's working hours, so long as it complies with the Employment Standards Act and whatever is written in the employment agreement. A well-written employment agreement will allow the employer to ad- just an employee's working hours as neces- sary (such as business travel) so long as the employer complies with the act. It is open to employers to put travel ex- pense policies in place so long as they are reasonable. Just like many businesses limit the class of travel, they can also put restric- tions on when overnight stays will be per- mitted and related issues. e only other consideration that springs to mind is any underlying health and safety concerns. Employers are obligated to keep employees safe, and while that may mean that it's okay to put them on a late flight, the employee may not be safe to drive if they're too exhausted once they return home. If the cost of the additional accommodation is the employer's main concern, offering the employee a safe method of transport to and from the airport may be a small ex- pense that is well worthwhile if it means keeping everyone safe on the roads. Policies must be reasonable in order to be enforce- able, and that includes a consideration of health and safety. Stuart Rudner is the founder of Rudner Law, an employment law firm in Markham, Ont. He is the author of You're Fired: Just Cause for Dismissal in Canada published by omson Reuters Canada. He can be reached at or (416) 864-8500. is column was written with the assistance of Shaun Bernstein, an associate with Rudner Law. Request for time off for religious reasons Question: If an employee requests a day off for religious reasons, can the employer inquire what the reasons are if unfamiliar with the employee's beliefs? If the employee's stated religion isn't a major or official religion, can the employer make the employee use a vacation day? Business travel restrictions Question: Are there any travelling distance standards or liability issues with limiting the accommodation allowance for business trips to the bare minimum — for example, if an employee is sent to a conference lasting two full days but is only allowed one night's accommodation and told to fly back late the second night?

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