It is commonly understood that employers are required to
accommodate requests for time off to observe religious holidays.
But what exactly is the scope of the employer's obligation? Is
flexible scheduling an acceptable means of accommodation? Is the
employer required to pay an employee during the employee's
religious leave and, if so, under what circumstances? These are
just a few of the questions that often trouble employers when it
comes to accommodation of religious leave.
The Ontario Human Rights Tribunal's (the
"Tribunal") recent decision in Markovic v.
Autocom Manufacturing Ltd.  HRTO 64, released
September 3, 2008 ("Markovic"), provides a useful summary
of the law to guide an employer's efforts at religious
accommodation. Ultimately, the Tribunal held that there is no
automatic right to paid leave for religious observances and
endorsed flexible scheduling or the "menu of options"
approach as an appropriate response to requests for religious
Savo Markovic (the "Employee") claimed that Autocom
Manufacturing Ltd. ("the Employer") discriminated against
him on the basis of creed (religion) by failing to provide
compensation while he was off work due to the observance of Eastern
Orthodox Christmas. In response to this complaint, the Employer
developed a "Procedure for Accommodation of Religious
Observances" (the "Policy") under which bona fide
requests for religious leave would be accommodated to the point of
undue hardship. The Employee, the Employer and the Human Rights
Commission (the "Commission") agreed to have the Tribunal
assess the legality of the Policy as a preliminary question of
The Employer's Policy provided: (1) a process for employees
to arrange for time off and (2) a range of options whereby
employees could obtain religious leave without loss of pay.
Pursuant to the Policy, employees were asked to notify their
supervisor of the holy day and the accommodation required as soon
as practicable. A scheduling change, vacation time and an unpaid
leave of absence were among the options listed as means of
The Ontario Human Rights Tribunal's Decision
The Tribunal noted that while Christmas and Good Friday
originated as Western Christian observances, they are now
considered secular holidays recognized under the Ontario Employment
Standards Act, 2000 (the "ESA"). While secular holidays
are not overtly discriminatory, a work schedule that provides
observant Christians with time off to celebrate Christmas and Good
Friday, but does not recognize non-Western Christian holy days, is
discriminatory in its effect.
The Tribunal affirmed the proposition that an employee does not
have an automatic entitlement to two additional paid holidays based
on the recognition of Christian holidays in the regular work
calendar. The Tribunal held that scheduling changes that do not
result in a loss of pay are an appropriate means of accommodating
religious observances in the workplace.
In the end, the Tribunal held that the Policy's menu of
options approach, whereby the Employer provided for scheduling
changes without loss of pay, was an appropriate means of religious
accommodation and consistent with the Ontario Human Rights Code
What Markovic means for Employers
When an employer can accommodate an employee's request for
religious leave without incurring undue hardship, an employer is
obligated to do so. However, Markovic reiterated that there is
no absolute right or entitlement to
paid religious leave. Based on the
Tribunal's decision, a policy which establishes a process
whereby employees can arrange for religious accommodation by way of
a menu of scheduling options is all that is required under the
Code. At the same time, employers are reminded that accommodation
is a highly individualized process and even the most flexible
scheduling may not be sufficient to accommodate each employee's
Employers should also be aware that the Tribunal's decision
is not in line with the Ontario Human Rights Commission's
"Policy on Creed and the Accommodation of Religious
Observances". The Commission's policy specifically states
that employees are automatically entitled to two paid days of
religious leave to echo the two Christian days that are also
statutory holidays under the ESA. However, this policy was last
updated in October 1996 and it is commonly accepted that it does
not reflect the current state of the law. While only a Tribunal
level decision, Markovic's menu of options approach is
consistent with the case law in this area and as such, provides a
guide for employers when formulating and administrating religious
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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