How to run vacation blackouts – and still meet your duty to accommodate

In 2019, a sales associate at The Brick asked for extended time off to visit her father in India during a peak sales blackout. The request was denied, and the dispute ended up before the Human Rights Tribunal of Ontario.

This month the yribunal finally dismissed the claim because the employee couldn’t prove discrimination based on origin, citizenship, family status or reprisal; in the decision, Bakhshi v. The Brick Warehouse LP, the tribunal said the employer hadn’t received enough information from the employee to treat the request as a family status accommodation case.

In this case, the blackout policy stood. But as Toronto employment lawyer Ellen Low explains, the key for employers is understanding that blackout policies aren’t an absolute shield against discrimination claims, especially when they intersect with an employee’s Code-protected human rights.

“I don't want employers to use this decision as a green light to think that they can just rely upon a blackout period as a blanket defense,” Low says.

“Any outcome in a given case, in particular in front of the Human Rights Tribunal, is going to be very specifically procedural, and there will be a substantive review, as they did in this case, of all of the specific steps that were taken or not taken.”

Blackout policies are neutral – until they are not

In this case, the tribunal accepted that peak‑season vacation bans can be legitimate, neutral business strategies in a retail environment, calling the furniture seller’s “Tent Sale” events the “Superbowl” of its revenue year when the bulk of its revenue is made.

Low notes that even apparently neutral rules, like saying “Everybody has to be here” during sales or peak seasons, can amount to “adverse effect discrimination” if they disproportionately burden people with protected characteristics.

She points to a December or January blackout that may interfere with religious observances as an example of how a blanket business need is not permitted to just override human rights and accommodation.

“A blanket vacation blackout period, on its face, that's a neutral business requirement: ‘Everybody has to be here. It's a very busy time. This is when we make all of our money,’” Low says.

“That, though, can butt up against or can operate as constructive discrimination pursuant to section 11 of the Code if that blanket policy was to apply to specific individuals.”

Understanding undue hardship

For HR, the other guardrail is undue hardship. The tribunal in Bakhshi accepted that The Brick’s blackout period reflects a genuine operational need around peak sales, and Low explains that Ontario human rights law gives employers parameters for when they can refuse accommodation requests that conflict with those needs.

“The code provides us with some jurisprudence and allows us some parameters about when have hit the point of undue hardship,” she says.

“At what point can the employer say, 'This is a business need, we cannot accommodate this employee's request, we're invoking the point of undue hardship'?”

She stresses that undue hardship turns on more than inconvenience. Employers must show “objective, real, direct, quantifiable evidence” that going further would be too costly or cause legitimate health and safety or serious morale issues.

“A mere business inconvenience, we know, isn't going to cut it in terms of establishing that granting the accommodation would otherwise invoke the point of undue hardship,” Low says.

Designing and documenting the process

For employers, the million-dollar accommodation question is “What constitutes ‘undue hardship?’” Low cautions there is “no bright-line rule” for when operational costs cross into undue hardship – each case is contextual, making design and documentation critical.

“Document, document, document design policies that are inclusive at the policy level,” she says.

“The Ontario Human Rights Commission has said that organizations have an obligation to design policies with diversity in mind from the outset.”

This means dusting off blackout policies that may have served their purpose for years but likely won’t pass muster now if challenged. She suggests checking multi‑faith calendars before locking in blanket blackouts and anticipating that any such rule will generate accommodation requests.

“Ideally, it is proactively designed for diversity. There are going to be exceptions, and those exceptions have to be taken into account seriously. And that's where the documentation comes in,” Low explains.

“So have a written accommodation process, follow it and document it, and document that you have followed through with it, so that if and when you are ever in front of the tribunal, you can show the evidence that you took the request seriously, you contemplated the accommodation seriously, and that you have a paper trail about the reasons why you could not support that specific accommodation request to the point of undue hardship.”

Training managers to spot accommodation requests

Finally, Low encourages HR teams to train managers to recognize when a time‑off request is really an accommodation issue. In Bakhshi, the tribunal found the duty to accommodate wasn’t triggered because the employee did not clearly link her request to eldercare – a reminder that not every difficult situation engages human rights law.

“We don't deal with employees’ preferences at the Human Rights Tribunal,” she says.

“We deal with protecting only rights and obligations that are protected based on personal characteristics” in accordance with the Code.

The lesson for employers is to use time‑off requests as opportunities to ask the right questions and build a strong paper trail so it can be better positioned to defend both its business needs and compliance – because leave-related accommodations aren’t going anywhere.

“We've seen a fair amount of press coverage, for example, around a blanket insistence that everybody returns to the office three days, four days, five days a week, and we've seen the fallout in terms of the number of accommodation requests that have come in to various organizations in response,” Low says.

“There seems to be a broader awareness of the ability to seek an accommodation.”