Canadian Employment Law Today

Holiday roads have different routes Ontario decisions prompt employers to provide additional time off to non-Christian workers to celebrate their religious holidays BY ALAN RIDDELL AND KYLE VAN SCHIE H uman rights legislation — such as the Ontario Human Rights Code — explicitly prohibits an employer from discriminating against Muslim, Jewish and other employ - ees on the basis of creed or religion, unless it can show that such discrimination is nec- essary to prevent "undue hardship" to itself and its business. But in practice, trying to determine when accommodation measures genuinely give rise to undue hardship can be a highly complex task for even the most legally sophisticated HR staff. e task facing HR managers is further complicated by the highly subjective test adopted by Canadian courts for determin- ing when an employee's personal beliefs or customs should be protected under the guise of "freedom of religion." at test is not whether the practice or custom is root- ed in any recognized religious text, but instead whether the employee sincerely believes that the custom is fundamental to her own interpretation of that religion. In other words, even an uncommon custom followed by a small handful of believers is protected by the code, if their convictions are sincere, even if that custom has been overwhelmingly rejected by mainstream adherents of that same religion! Consider the following questions: Can religious employees be forced to follow a secular dress code at work? Under the code, there are strict require- ments for employers seeking to enforce secular dress codes on religious employ- ees. To force employees to abide by a dress code, in violation of their religious prac- tices, an employer must be able to prove that the restrictions on what they wear is a bona fide occupational requirement of the job and their failure to abide by them would result in health and safety issues. However, even if there is a valid health and safety rationale for the restrictions, the law still requires that the employer accommodate the employee to the point of suffering undue hardship. ese protections cannot be stretched further than is required by the tenets of the employee's religion. By way of illus- tration, in Audmax Inc. v. Ontario (Hu- man Rights Tribunal), a Muslim com- plainant insisted on wearing an exotically coloured hijab to work, in contravention of her employer's dress code. When her employer objected to her wearing that hi- jab to work, she filed a complaint under the code. Ultimately, the Ontario Divi- sional Court sided with the employer and dismissed her complaint on the grounds that what the dress code prohibited was not her right to wear a hijab, but rather her right to wear a hijab of that particular type. e court reasoned that since the dress code only prevented the employee from wearing a hijab of that flamboyant colour, and not another hijab of a more modest hue, there had not been any breach of her religious rights. In rendering this verdict, the Divisional Court upheld the legal right of employers to force even the most devout Muslims and Jews to fully comply with corporate dress codes to the extent that this does not impinge on their core religious beliefs. Must employers give non-Christian employees extra days off to celebrate their own religious holidays? Employers are now required to allow re- ligious employees to take days off to cel- ebrate their own religious holidays. In Markovic v. Autocom Manufacturing Ltd., the Ontario Human Rights Tribunal stat- ed that the adherents of all faiths must be permitted to observe their own particular holy days by not working those days. e Supreme Court of Canada has further ruled that it is now unlawful for employ- ers to adopt a work calendar which gives Christian employees time off on Christ- mas and Good Friday without permitting employees from other religions to simi- larly take off their own separate holy days. e law is murkier on the issue of wheth- er employers are required to pay their non-Christian employees for the days on which they are off work to celebrate their religious holidays. ere is no legal obliga- tion to actually remunerate non-Christian employees on their religious holidays un- less their employment agreement provides for general paid leave which can be used, at will, for absences from work. In Markovic, the tribunal expressly rejected the posi- tion that employers are required to give non-Christian employees two additional paid days off to mirror the Christian holi- days of Christmas and Good Friday. However, the courts have ruled that employers must provide employees with scheduling options to enable them to take off those days without losing salary. In Chambly (Commission scolaire régionale) v. Bergevin, the Supreme Court of Canada ruled that an employer cannot bar an em- ployee from using paid discretionary leave days to celebrate her holy days. e following are examples of schedul- ing options suggested by the courts and the tribunal: • Permitting the employee to switch work shifts with those of other faiths. • Permitting the employee to work overtime, or through a series of lunch hours to bank paid overtime to the day of their religious holiday. • Permitting the employee to use any unused paid sick leave or compassionate care entitlement which she may have. Must you modify the daily work schedule of non-Christian employees to accommodate their religious practices? e duty to accommodate the religious ONE OF THE big questions facing employers in 2017 is how far to go in accommodating the religious practices of religious minorities in the workplace. As an employer, do you have to give Muslims time off work, several times a day, to perform their prayers, as all observant Muslims are encouraged to do in the Qur'an? Can your Jewish employees insist on your providing paid days off for Hannukah, and then working on Christmas or Easter? Such is the dilemma now facing HR managers across Canada, just as the country seeks to integrate into its workforce some 25,000 Syrian refugees, most of them Muslims. 4 Canadian HR Reporter, a Thomson Reuters business 2017 CASE IN POINT: HUMAN RIGHTS BACKGROUND

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