and Good Friday:
Must Non-Christians Receive Two Additional Paid Days Off?
By Sherrard Kuzz LLP, Employment and Labour Lawyers - an HR-Fusion Strategic Partner
In a recent decision, the Human Rights
Tribunal of Ontario (“Tribunal”) confirmed that employers are not necessarily
obliged to provide employees who do not observe Christmas and Good Friday with
two days of paid religious leave to mirror those public holidays (Markovic v. Autocom Manufacturing Ltd.). This decision is particularly helpful to
employer’s whose workforces are becoming increasingly diverse.
The Complainant, Mr. Markovic, was a member of the Serbian Orthodox Church, which celebrates Eastern Orthodox Christmas roughly two weeks after Western Christmas. Mr. Markovic made a complaint to the Ontario Human Rights Commission (“Commission”) alleging that his employer, Autocom, discriminated against him on the basis of his creed by failing to pay him when he took time off to observe Eastern Orthodox Christmas.
Subsequent to Mr.
Markovic’s complaint, Autocom developed a policy to address requests for time
off for religious observance. The policy
provided employees with a “menu of options” that primarily allowed for
scheduling changes, including:
- taking time off and making up time at a later date when the employee would not ordinarily be scheduled to work
- taking time off and making up time by working on a secular holiday when the workplace is operating, subject to the Employment Standards Act, 2000
- switching shifts with another employee
- adjusting the employee’s shift schedule where possible
- applying outstanding paid vacation time
- taking a leave of absence without pay
The question before the Tribunal was whether Autocom’s policy was contrary to the Human Rights Code (“Code”) and case law regarding religious accommodation.
A key argument against Autocom’s policy was
the fact that the Commission had a long-standing, non-binding, policy of its
own entitled Policy On Creed and the
Accommodation of Religious Observances.
This Policy requires employers
to provide to employees who are members of non-Western Christian religions at
least two days paid leave to mirror the public holidays on Christmas Day and Good
Autotcom policy offered a range of options to non-Western Christian
employees. However, the policy did not
offer two days paid leave as required
by the Commission’s Policy.
The Tribunal upheld Autocom’s policy, finding that it was not contrary to the Code or applicable case law.
The Tribunal’s decision is based on two key findings: First, the Tribunal found that the public holidays of Christmas Day and Good Friday “although [they] … originated in Western Christian observances … are now considered secular pause days”. As such, the Tribunal concluded, it is not discriminatory that these specific days are public holidays. However - and this is the Tribunal’s second finding - a work schedule which permits Western Christians time off to celebrate two of the most important Christian holidays, but which requires non-Christians to work on their holy days, is discriminatory. In other words, the discrimination arises out of the work schedule.
The solution, said the Tribunal - relying on the Court of Appeal’s decision
in Ontario (Ministry of Community and
Social Services) v. O.P.S.E.U. (Tratnyek) – is to provide an
opportunity for non-Western Christians to observe their holy days without a
loss of pay. This does not necessarily
require an employer to grant two days paid leave: “To put it simply, where the “problem” is the need for time, the
solution is the enabling of time”. Adjustments to work schedules could in
most cases provide an appropriate accommodation).
An employer has an obligation to design workplace standards that recognize and accommodate workplace diversity. In the case of religious observance, the Tribunal confirmed that this goal can be met by providing employees with a range of options that do not result in loss of pay (e.g. the majority of Autocom’s menu of options).
That is not to say that scheduling changes will always be a reasonable and appropriate accommodation. The nature of some jobs and occupations may not allow for the rearrangement of an employee’s schedule. In those cases, the solution may be that the employer must offer a paid day off.
To learn more, or to discuss how the Tribunal’s decision may apply to your workplace, please contact a member of our team.
This information is provided for general information purposes only and does not constitute legal or other professional advice. Readers are advised to seek specific legal advice from members of Sherrard Kuzz LLP (or their own legal counsel) in relation to any decision or course of action contemplated.