Accommodating non-Christian employees and their holidays
Question: If an employer offers all employees a certain number of floating personal days in addition to statutory holidays, does it have to grant additional days off to non-Christian employees for their holidays or can it order them to use their personal days?
Answer: The answer turns on a combination of an employer’s “personal day” policy and human rights considerations. Employment standards legislation dictates statutory holidays but is silent about personal days.
The concept of “floating personal days” is more prevalent in the U.S. than in Canada. The idea is simple; an employee is given several – often paid – floating personal days per year which she can use for personal reasons, including religious holidays. Employers offer floating personal days to employees and so employees will largely have unlimited discretion in choosing their days off. If an employer wanted to try to limit this discretion, it would have to create a policy for religious holidays.
Any such policy should be based on the law which has grown out of human rights decisions. Discrimination on the basis of religion, creed or religious belief with respect to employment is widely prohibited in Canada. A schedule of work based on holidays recognized under provincial employment standards legislation is secular in nature and non-discriminatory on its face but a work calendar which permits time off to celebrate the Christian holidays such as Christmas and Good Friday, but requires work on holy days of other religions is discriminatory in effect (see Markovic v. Autocom Manufacturing Ltd.)
The employer has a duty to reasonably accommodate employees seeking time off for religious observances and the employee has an obligation to participate in this process. In most circumstances, accommodation can be achieved through scheduling changes which do not result in a loss of pay; “where the ‘problem’ is the need for time, the solution is the enabling of time,” as the court in Markovic stated. Courts and tribunals have suggested that the appropriate approach is for an employer to provide an employee with options to accommodate time off work for religious observances, including making up the time on another day, working on a secular holiday when the facility is operating, switching shifts, adjusting shift schedules, using outstanding paid vacation or providing a leave of absence without pay: see, for example, Richmond v. Canada (Attorney General).
The Supreme Court of Canada’s decision in Chambly (Commission scolaire régionale) c. Bergevin is an example of a workplace where scheduling changes could not provide a reasonable accommodation because teachers can only teach when the school is open and the school board was required to provide three days of paid leave. However, Chambly was a labour law case decided on its own facts. The predominant view is that reasonable accommodation generally does not require paying employees for time off for religious observances.
An employer should try to reasonably accommodate an employee seeking time off for religious holidays. In the absence of a policy, the employer cannot order an employee on how to use her personal days. However, given that most employers can accommodate through scheduling changes which do not result in a loss of pay and that employees are not required to be paid for time off for religious observances, it is more likely than not that the employee will use floating personal days for religious holidays if she wants to be paid for these days.
For more information see:
•Markovic v. Autocom Manufacturing Ltd., 2008 CarswellOnt 5936 (Ont. Human Rights Trib.).
•Richmond v. Canada (Attorney General), 1997 CarswellNat 564 (F.C.A.).
•Chambly (Commission scolaire régionale) c. Bergevin, 1994 CarswellQue 78 (S.C.C.).
