Osgoode Labour & Employment Law Society

Accommodation for Religious Holy Days

With the holiday season quickly approaching, it’s important to remember the somewhat unequal treatment with respect to religious holidays in Canada.  That is, the two Christian holy days, Christmas and Good Friday, are statutory holidays in the Canada Labour Code and across all provinces.  Rosh Hashana, Yom Kippur, Mawlid al-Nabi, and Christian Orthodox holy days aren’t quite so lucky to receive the same statutory treatment.

So when an employee requests time off for religious observances, what is an employer to do?  Do they have to grant time off, and if so, do they have to pay the employee as well?  The short answer is that under the Human Rights Code, leave must be granted unless it would cause the employer undue hardship.  However, from there it gets more complicated.

Accommodation through Flexible Scheduling

The Supreme Court has held that, with respect to time off for religious observances, accommodation is best provided by flexible scheduling arrangements (see Central Oakanagan School District No. 23 v. Renauld, SCC 1992).  This could be implemented in any number of ways, but the gist is that the employee requesting time off shouldn’t have to lose wages or use vacation benefits in order to meet the requirements of his/her religion; rather, they should be accommodated.

In Renauld, the plaintiff was a Seventh-day Adventist whose faith required him to observe Sabbath from sundown Friday to sundown Saturday.  However his Monday to Friday schedule conflicted with this, so the employer proposed a Sunday to Thursday shift.  When the union rejected this proposal, Renauld filed a human rights complaint which was eventually heard by the Supreme Court.  In assessing the reasonableness of the employer’s proposal, Sopinka J. noted that an alternative work schedule was “not only reasonable but most reasonable”.  In this regard, flexible scheduling arrangements are a “win-win” situation: employees get the time off their religion requires without significant cost or detriment, and employers avoid liability by satisfying their duty to accommodate.

Accommodation Where Rescheduling Not Possible

However, not all jobs allow for alternative scheduling arrangements.  Think about teachers: it’s not like they can work saturdays or evenings to make up lost time – if the pupils aren’t in the classroom, teachers can’t work!  This was the issue in Commission scolaire régionale de Chambly v. Bergevin (1994 SCC) where three Jewish teachers were granted time off without pay to observe Yom Kippur, but were then denied reimbursement.  In arriving at its decision to order reimbursement the Supreme Court weighed a number of factors, such as interpretation of the collective agreement, but gave significant consideration to the fact that it was not possible for the teachers to make up their lost wages.  Writing for the majority, Cory J. noted that there was “no difference in principle” between the loss of a day’s pay and the loss of a week’s pay when there was no possibility to make it back up.  For this reason, when time off work for religious observances cannot be “made up”, reimbursement may be necessary.  However it must be stressed that this will depend on the terms of employment, and the provisions of the collective agreement (if any).

No Duty to Exercise Possible Discretion

But what if a persistent employee instead take the position that he or she must be provided time off with pay for their religious observances, especially if doing so imposes no undue economic hardship on the employer?  This is exactly what happened in Richmond v. Canada (Attorney General) (FedCA 1992), where two Jewish employees of the Treasury Board insisted they receive time off with pay to observe Yom Kippur and Rosh Hashana.  The Federal Court of Appeal held that the doctrine of undue hardship did not require the employer to exercise “discretionary provisions” of the collective agreement to automatically add three days extra leave with pay so the employees could meet their religious observances.  To do so would risk a “serious disruption” to the balance of collective agreements in place (or in other words, it would be unfair).

The Final Word in Ontario

Rather, at least in Ontario, if employers can provide alternative scheduling arrangements to employees who require time off for religious observances, then their duty to accommodate will be satisfied and no consideration of a paid leave of absence will be required.  This was established by the Ontario Court of Appeal in Ontario (Ministry of Community and Social Services) v. OPSEU (OntCA 2000).  In that case, despite being provided with an abundant number of alternative scheduling alternatives, including working compressed work weeks to produce a day of lieu time, an employee whose faith required 11 days off per year insisted he be provided with paid time off.  The employee (and his union) took the position that any lieu time earned through such scheduling arrangements were “earned vacation benefits”, and as such were inappropriate to use for religious observances.  The arbitration board and Divisional Court bought this argument, but the Court of Appeal thoroughly rejected it.  The Court held that flexible scheduling simply rearranged an employee’s assigned working hours – nothing more, nothing less.  Therefore, if such scheduling options are available to meet an employee’s religious observances, an employer will have fully satisfied its duty to accommodate.

Conclusion

So what are the morals to the religious accommodation story?

1. Flexible scheduling arrangements provide the best accommodation for employees who need time off for religious observances.  They are, in effect, a “win-win” situation.
2. In situations where time taken off work for religious observances cannot be made up, as in the case of teachers who have a fixed work calendar, reimbursement for this time off work may be necessary.  However this will largely depend on the terms of the employment and the provisions of the collective agreement (if any).
3. The doctrine of undue hardship does not necessary extend to providing paid leaves of absence for religious observances.  This would be arbitrary and unfair.
4. At least in Ontario, an employer can fully satisfy its duty to accommodate employees who require time off work for religious observances by providing flexible scheduling options.  If an employer can do this, it is not necessary to consider whether a paid leave of absence would result in indue hardship.