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Must My Employer Pay Me When I Miss Work to Observe a Religious Holiday?

This is an issue we discuss in my employment law course.  In Canada, we have a number of ‘statutory’ holidays, many of which are based historically on Christian holy days (Christmas, Easter, etc).  The law regulates those days by giving (most) employees time off on those days.  But there are obviously many other religious holidays that are not recognized as ‘stat’ holidays.  If I observe a faith which has holidays on a regular scheduled work day, am I entitled to take that day off with pay?

This is a human rights law issue.  Human rights codes prohibit discrimination on the basis of religion (creed) in employment.  Employers are required to accommodate religious needs to the point of ‘undue hardship’.  But does that mean that an employer must permit all employee requests for time off with pay to observe religious holidays?

A recent decision of the Ontario Human Rights Tribunal considered that question.  In Markovic v. Autocom Manufacturing,  the employee requested time off to celebrate the Eastern Orthodox Christmas of January 7.  The employer developed a policy that provided the employee with a “menu” of options that would enable him to take the day off, but without pay.  For example, he could make the time up by working another day he was not scheduled to work, by trading his shift with another employee, etc.  The employee (and the Ontario Human Rights Commission) argued that the duty to accommodate required the employer to pay the employee for the day off, just like an employee would be paid for the ‘Western Christmas’ date (December 25), unless paying that amount would cause the employer undue hardship.

The Tribunal ruled against that argument.  It found that it is not necessary for an employer to pay employees for not working, but it can instead offer the employee options for observing the holiday without loss of pay by making up the shift somehow:

the obligation on the employer is to design its workplace standards in a way that recognizes differences in religion amongst its individual employees, and accommodates those differences.  The task is to mesh its workplace rules with the needs of a diverse workforce, with the goal of enhancing participation and inclusion.  In the case ofreligious observances, those goals can be met through the provision of options for scheduling changes that do not result in loss of pay.

Note the Tribunal ruled that the law does not require “equality of outcome” in the sense that all employees are treated identically (i.e. if one employee gets paid while observing a religious holiday, all employees must similarly be paid).   Do you think the Tribunal applied an appropriate balance here between the rights of the employee and the business concerns of the employer?

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2 Responses to Must My Employer Pay Me When I Miss Work to Observe a Religious Holiday?

  1. Darren Reply

    March 27, 2009 at 12:16 pm

    I need to read a bit more in-depth, but I think it was the right decision.

    Despite the fact that Christmas and Easter are traditionally religious holidays, many people do not see them as such and still get paid time off (including the complainant in this action). Therefore, I think that they can be slightly separated from their religious origins, and paying people for the day off on Christmas isn’t really paying them for religious observance.

    This worker got paid time off for Western Christmas. If he really wants, he can make a cosmetic change so that on “Western Christmas” he does not get paid for his time off, but then gets paid time off for Eastern Orthodox Christmas, but that’s about the extent of it. Having different religious observances does not necessarily entitle you to more paid days off, particularly because that leads to a slippery slope that could ultimately end up with Catholics requesting things like Feast days off.

  2. Danny Reply

    April 6, 2009 at 3:42 am

    Darren, I couldn’t have put it better myself.

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