This time of year, many of us are busy preparing for the upcoming holiday season.
It is important to remember that the two biggest holidays of the year – Christmas and Easter- arise from one faith tradition.
Of course, not everyone shares this tradition.
Christmas day and Good Friday are both statutory holidays.
Those who celebrate those days typically have the day off, or are paid extra to work those days.
For those who do not share this tradition, their biggest holidays fall on days that may be considered by many to be regular work days.
Employers must be mindful that not everyone shares the Christian tradition. It is important that seasonal celebrations not exclude those who do not share this tradition, including those of other faiths, and those who are not religious at all.
Under the Human Rights Code, employers have an obligation not to discriminate in employment on the basis of religion. This requires employers to provide religious accommodations to employees up to the point of undue hardship.
An employee who requests leave from work for religious reasons should make this request in writing. The employee must be willing to respond to any reasonable questions the employer may ask to verify that the request is legitimate and how to accommodate it. It is wise to first determine if the employer has a policy on requesting temporary leaves of absence, and if so, comply with it if at all possible.
What do I mean by verify the request? While an employer might be aware that certain faiths exist – Islam, Judaism, the Sikh tradition and others, it may not be familiar with the specific traditions of that faith. Some may be celebrated outside of work hours, for example, such that time away from work is not required.
There are also other faiths that are less well known. An employer might need to acquire a level of familiarity with the religion itself. Cases do occur from time to time in which an employee requests time away from work for reasons that do not qualify as a “religion.” For example, in a different context, the Federal Court of Appeal recently held that the "church of atheism" is not a religion.
Employers must also be mindful that not all employees from the same faith may celebrate in the same way. One may request time away for a legitimate reason, and another may not.
This is tricky stuff. On one hand, an employer may want to verify the request and what is required to accommodate it. On the other hand, it must be careful not to violate employees’ privacy, or to ask questions that are not truly necessary. Doing so could set itself up for a subsequent discrimination claim.
To allow an employee to celebrate religious holidays, an employer can offer options such as compassionate paid leave, overtime or other arrangements.
In order to refuse a valid request that is connected to a legitimate religion, the onus is on the employer to establish undue hardship. Typically, this is not easy to do. For this reason, religious accommodation is typically expected.
The holiday season is a good time to remember that in our diverse nation, we all ought to be free to celebrate our important religious traditions with our loved ones, regardless of our faith.
This is a slightly modified version of an article that is appearing in the Kelowna Daily Courier, the Kelowna Capital News and other online publications on or about December 13, 2019. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or through our website at inspirelaw.ca.