It’s the most legally risky time of the year

The end of another year approaches and with it comes the opportunity for employers and employees to reflect on their accomplishments and look ahead to the next year, as well as celebrate the holiday season. However, this time of year also brings potential legal liability, from potential discrimination to employment standards breaches.

With the arrival of December, the traditional holiday season launches and many employers recognize it with events and decorations in the workplace. Christmas dominates at this time of year, but it’s a good idea to recognize the fact that there are other holidays happening and workplace diversity is greater than ever, with many employers prioritizing inclusion.

This means potentially adjusting the way the season is celebrated, according to Krista Siedlak, an employment lawyer and mediator at Turnpenney Milne in Toronto.

“There are a lot of different members in our workplace community and [workplace celebrations] need to be positioned more as an end-of-year event or celebration, as opposed to linking it to a religious holiday,” says Siedlak.

“If you fall back on Christmas-type celebrations and decorations, I think there is a risk that members of your team will view that to be discriminatory because it's in line with a specific religion, and you want to make sure that not only is your workplace diverse, but that you're being inclusive with respect to involving all different religious backgrounds - it would be prudent to call it a holiday party or, even better, tie it to a recognition of the year in review.”

Handling discrimination complaints

But what happens if holiday celebrations or decorating lean too far in favour of a particular religious holiday and someone is uncomfortable enough to make a complaint? Employers should take it seriously and handle it like any other discrimination complaint, working to understand the concern, says Siedlak.

“It may be a good learning opportunity for the employer to consider that individual’s perspective - your celebrations may not be overtly discriminatory, but is it adversely or constructively discriminatory?” she says.

“And if it is, then you can adapt what you're planning to do, and if that is not satisfactory to the employee, then it would require a more robust investigation into the issue.

“But hopefully it could just be resolved through open communication and taking it as an opportunity to learn more,” she adds.

Harassment, misconduct at holiday parties

When workplace celebrations turn to full-blown holiday parties, whether at the workplace or elsewhere after hours, it brings a bucketful of liability risk for employers, says Siedlak, who notes that incidents of harassment, sexual harassment, and other forms of misconduct can increase at extracurricular events like holiday parties.

“One of the main concerns with is with respect to how people are behaving and whether or not they're still governing themselves in a way that's in accordance with the respect-in-the-workplace policy,” she says. “It’s prudent before the party or event to circulate to all staff that the event is an extension of work, the same rules apply as when [they’re] in the office space, and the expectation is that employes will be respectful and professional.”

It’s also important to emphasize to managers and supervisors that they are held to a higher standard of care and it’s part of their job responsibilities to model the proper behaviour at office parties, adds Siedlak.

Limiting alcohol consumption

If an employer opts to have alcohol at a holiday party, it adds to the risk, and strategies should be in place to limit alcohol consumption, according to Siedlak.

She suggests using a catering service if the event is in the office, or having it at a venue with staff trained on Smart serve protocol, and using drink tickets so the employer is controlling how much alcohol is being consumed.

“Another good tip that I have recently been telling my clients is that after a time limit when drinks won't be served, bring out tea and coffee, and maybe that's the time that you do speeches, so there's that time to get it out of your system,” she says. “And be mindful of how people are coming to and from events - I think that employers are much more versed in the idea of getting taxis or arranging for transportation to get people home.”

Vacation leave crunch

After the holiday celebrations comes the end of the year, which has some potential liability of its own for employers, particularly when employees have vacation leave that needs to be taken. Many employers don’t permit carryover into the following year, so can they force employees to take it or risk losing it?

“Historically, we have these ‘use-it-or-lose-it’ policies, which have the potential to be in violation of [employment standards] because you can’t lose your entitlements to vacation under the Employment Standards Act [ESA],” says Siedlak. “So if you have a use-it-or-lose-it type of policy, it needs to only apply to vacation entitlements that are greater than the ESA entitlements.”

For example, if an employer provides four weeks of vacation and employment standards legislation entitles an employee to two weeks, a use-it-or-lose-it policy would only apply to the two weeks that are in excess of the statutory entitlement, she says.

Employers are also allowed to unilaterally decide when employees take vacation. Siedlak notes that it might not do much for employee morale, but if the year-end is coming and the employee hasn’t taken their statutory entitlement, it’s an option.

“When you're in a situation where you've asked the employee to take vacation and they're still not taking it, then you're absolutely within your rights as an employer to require them to take the time,” she says, adding that employers can also direct employees to take vacation time during holiday shutdowns.

Accommodating religious holidays

Time off can also be an issue connected to the diversity of the workforce, as statutory holidays at this time of year are tied to the Christian holiday of Christmas. Recognizing the diversity of people and religions may extend beyond assessing your in-office celebrations, to also exploring options for employees of other religions to recognize their own religious holidays, says Siedlak.

“There are many creeds that require members to engage in specific practices or celebrations on different days and the best practice for an employer is to consider if they’re able to accommodate those additional days or offer additional options to the employee,” she says.

Options to accommodate other religious holidays include offering another day off and have them work the holiday - it's much easier with remote work to do that switch out, says Siedlak – having them work additional hours for certain days to make up the time, or offering a compressed work week during that period of time.

“Really look at ‘What can we do to accommodate that request without having the individual having to take the day off without pay?’” says Siedlak. “If you actually take a thoughtful approach to it as an organization, you could probably come up with a variety of options that would meet their needs and, at the same time, not impact your business operations in any way.”