Does an employer have to grant additional days to non-Christian employees?
Question: If an employer offers all workers 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 have them 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 United States than in Canada. The idea is simple; an employee is given several — often paid — floating personal days per year that she can use for personal reasons, including religious holidays.
Employers offer these days so employees will largely have unlimited discretion in choosing their days off. If an employer wanted to limit this discretion, it would have to create a policy for religious holidays.
Any such policy should be based on the law that 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 that permits time off to celebrate Christian holidays, yet requires work on the holy days of other religions, is discriminatory in effect (see the 2008 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 that do not result in a loss of pay; “Where the ‘problem’ is the need for time, the solution is the enabling of time,” according to the court in Markovic.
Courts and tribunals have suggested 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, the 1997 Richmond v. Canada (Attorney General).
The Supreme Court of Canada’s decision in the 1994 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, it cannot mandate how an employee uses her personal days.
However, given that most employers can accommodate through scheduling changes that 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 the employee will use floating personal days for religious holidays if she wants to be paid for these days.
Brian Johnston is a partner at Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or [email protected].
