Canada: Happy Himmelfahrt: 5 Employer FAQs About Religious Accommodation @ Work

Last Updated: December 19 2016
Article by Malcolm Boyle and Leah Kutcher

Employers' legal duty to accommodate employees seems to most frequently come up in the context of employees with disabilities. But that duty extends to any characteristics that human rights legislation protects, including gender identity, gender expression and sexual orientation, sex, family status ... and religion. As the ethnic diversity of Canada's population grows, so too does the religious diversity of its workforce – and the calendar of religious holidays has expanded correspondingly. Employers risk violating human rights legislation when they make generalized assumptions about what days of the week or of the year religious beliefs restrict employees from working, or impose unrealistic alternatives or conditions on employees.


That's just what was at stake in a 2015 decision of the Ontario Human Rights Commission when one employer (ES Holdings Inc., operating as Country Herbs) failed to accommodate Himmelfahrt. The employer grows and imports vegetables and herbs in a rural locale. Two full-time employees, a brother and sister, both minors, packed the products; the employer agreed with their parents that they wouldn't work past 10:00 p.m., given their age. The employer's written policy stated there was no time off on Thursdays; this was due to the required delivery schedule and the perishable nature of the product. The siblings are German Mennonites who celebrate a religious holiday called Himmelfahrt; in this year, the holiday fell on a Thursday. One sibling was scheduled to work on Himmelfahrt; the other wasn't. Together, they informed their employer in advance of Himmelfahrt that the scheduled sibling wouldn't be able to work either on Himmelfahrt. The employer gave her the option of attending work on Himmelfahrt or at a special midnight shift, added only when there was a German Mennonite holiday, to make up the hours missed or be fired. The scheduled sibling didn't attend work on either and the employer fired both siblings. The siblings filed a complaint with the Ontario Human Rights Commission alleging discrimination in employment based on creed and association. The employer argued the siblings knew the policy and its consequences. Furthermore, Himmelfahrt fell on a Thursday, a particularly busy day. Eleven other employees had also asked for it off; it wouldn't be possible to accommodate everyone and scheduling make-up shifts after Himmelfahrt would be unsustainable given the perishable products and time-sensitive nature of the work. But the human rights adjudicator agreed with the employees:

  • The attendance policy discriminated on the basis of creed, and the midnight option wasn't reasonable The employer adopted the policy for a purpose rationally connected to the job performance and in an honest and good faith belief it was necessary to fulfill the work-related purpose – but didn't prove the policy's standard was reasonably necessary to accomplish that work-related purpose nor that the employer took reasonable steps to accommodate the scheduled sibling. There was no evidence the employer had any discussion with the employee or obtained information about her situation, that it considered how she could be accommodated or even that it gave serious thought to alternatives to accommodate her even though she informed the employer far in advance.
  • The alternative it proposed to the employee (working at midnight) was unreasonable in the circumstances (the employee's age, the employer's setting and the prior agreement with the employee's parent limiting the hours of work), so imposing the attendance policy on her wasn't justified.
  • Regardless, the employer didn't adduce any evidence of undue hardship.

The adjudicator also decided the employer fired the unscheduled sibling because of his association with his sister on the basis of creed contrary to the Human Rights Code (and likely also a wrongful dismissal regardless). The adjudicator awarded the siblings a total of $17,500 compensation for injury to their dignity and feelings, $8,617 for lost wages (plus interest), and ordered the employer to create an internal human rights policy, take human rights training and place Human Rights Code cards throughout the workplace.


Here are the answers to five of employers' most frequently asked questions about accommodating employees on the basis of religion.

1. What "religions" is an employer required to accommodate?

In the seminal case on freedom of religion, Syndicat Northcrest v. Amselem, the Supreme Court of Canada said that, "[d]efined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual's spiritual faith and integrally linked to one's self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith."

Human rights legislation protection of religion in Canada covers more than merely mainstream or well-known religions, and extends to creed and religious creed. As long as a person has a religious belief that's "sincerely held", regardless of how widespread that belief is, the employee is entitled to be accommodated. If an employee approaches their employer about religious accommodation, it's important that that employer keep an open mind, avoid making off-the-cuff judgments of the legitimacy of any such belief or religion, hear the employee out, take steps to fulfill its duty to accommodate and document everything fully.

2. Why should an employer accommodate one employee if other employees of the same religion don't ask for accommodation?

Because it has a legal obligation to do so. Religion is personal. People's beliefs and practices often exist on a spectrum: some devout believers seek no accommodation, while others, whose belief may not appear as deep, believe sincerely in observing rites and rituals. And an accommodation that works for some employees might not work for others. For example, in the Himmelfahrt case example, 11 employees had asked to take the holiday off; about half took the option to work the newly added midnight shift and took the day off, and half worked the holiday. The siblings were the only employees that didn't work either option – but the employer still violated their right to be free from discrimination based on religion.

3. What sorts of things does an employer have to do to accommodate an employee's religion?

Accommodating religion means taking steps to avoid unnecessary interference with the employee's observance of their religion. Depending on the nature of the workplace and the requirements of the religious belief, this could entail the employer:

  • Giving an employee time off or adjusting its scheduling to allow an employee to observe their Sabbath, certain holy days or even daily rites, such as prayer. In Canada, the Christian population is generally accommodated through statutory holidays. However, members of other religions may request time away from work for their high holy days. Usually, accommodation takes place by allowing them to use vacation time, banked time or the like. There is very little precedent for requiring an employer to offer paid time off.
  • Eliminating or adjusting practices or policies, both those that are discriminatory on their face and those that appear neutral, but have a discriminatory impact. One example is workplace dress codes, which can often seem reasonable but once in practice, can adversely impact an employee based on their religion.
  • Not imposing one group's religion on non-adherents. This may be challenging in workplaces dominated by one religious group, but the employer is still legally obliged to accommodate. So, for example, because your company's Christmas Hannukah Kwanza party probably isn't focussed on the religious aspects of a holiday and is instead intended to allow employees to get together socially, calling it a holiday party is more inclusive – and advisable.

4. How much accommodation is enough?

An employer is required to offer reasonable accommodation to the point of "undue hardship". At times, this might seem impossible or unfair to the employer. But before jumping to this conclusion, the employer must consider the potential accommodations and the evaluate each relative to the factors that bear on undue hardship (and should document its considerations). These can include financial cost, disruption of a collective agreement, problems of morale, feasibility and reallocation of work or scheduling changes. Often, the size of the employer's workforce is key. Accommodation is typically easier where the workforce is large and religiously diverse than where it's relatively small and the proportion of those seeking accommodation is relatively large. But an employer's obligation to accommodate employees' religion is to the point of undue hardship. The bottom line: some hardship must be expected and an employer must accept this as part of "the cost of doing business" in a diverse and rights-based society like Canada.

5. Why does the employer have to do all the work?

It doesn't. Employees seeking accommodation of religion (or any other type of accommodation) have a legal obligation to cooperate. This means they must participate in the accommodation efforts in a meaningful way, assist in finding an accommodation that works and accept a reasonable – as opposed to a perfect – accommodation. This might look different in each case depending on the nature of the workplace, the needs involved and the accommodation options. For example, if scheduling is an issue, the employee seeking accommodation might need to accept other scheduling changes that result from the accommodation, if they aren't avoidable and don't amount to discrimination themselves.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions