Holiday roads have different routes

Ontario decisions prompt employers to provide additional time off to non-Christian workers to celebrate their religious holidays
By Alan Riddell and Kyle Van Schie
|Canadian Employment Law Today|Last Updated: 05/10/2017

One of the big questions facing employers in 2017 is how far to go in accommodating the religious practices of religious minorities in the workplace. As an employer, do you have to give Muslims time off work, several times a day, to perform their prayers, as all observant Muslims are encouraged to do in the Qur’an? Can your Jewish employees insist on providing paid days off for Hannukah, and then working on Christmas or Easter? Such is the  dilemma now facing HR managers across Canada, just as the country seeks to intregrate into its workforce some 25,000 Syrian refugees, most of them Muslims.

Human rights legislation — such as the Ontario Human Rights Code — explicitly prohibits an employer from discriminating against Muslim, Jewish and other employees on the basis of creed or religion, unless it can show that such discrimination is necessary to prevent “undue hardship” to itself and its business. But in practice, trying to determine when accommodation measures genuinely give rise to undue hardship can be a highly complex task for even the most legally sophisticated HR staff.

The task facing HR managers is further complicated by the highly subjective test adopted by Canadian courts for determining when an employee’s personal beliefs or customs should be protected under the guise of “freedom of religion.” That test is not whether the practice or custom is rooted in any recognized religious text, but instead whether the employee sincerely believes that the custom is fundamental to her own interpretation of that religion. In other words, even an uncommon custom followed by a small handful of believers is protected by the code, if their convictions are sincere, even if that custom has been overwhelmingly rejected by mainstream adherents of that same religion!