Originally published in Blakes Bulletin on Labour &
Employment, December 2008
The Ontario Human Rights Tribunal ruled recently that employers
are not required to give employees paid leave from work in order to
accommodate religious observances. Rather, in most cases, the
employer's duty to accommodate can be satisfied by providing
employees with options involving scheduling changes that allow
employees to observe their religious holidays without incurring any
loss of pay.
In the case of Markovic v. Autocom Manufacturing Ltd.,
the Tribunal considered a complaint of discrimination filed by Savo
Markovic. Mr. Markovic, a member of the Serbian Orthodox Church,
alleged that Autocom discriminated against him by refusing to
provide paid leave for his observance of the Eastern Orthodox
Christmas on January 7, 2004. Autocom's leave policy did not
provide two paid days off for religious observance to parallel
payment for the statutory holidays that fall on Good Friday and
The Ontario Human Rights Commission presented the employee's
position before the Tribunal. While acknowledging that a "menu
of options" could satisfy the employer's duty of religious
accommodation, the Commission argued that two days of paid leave
from work must constitute one of the options available to
an employee on an equal basis with other options. According to the
Commission, an employer could only avoid offering two days of paid
leave if providing those days would cause the employer to suffer
undue hardship. This position is consistent with the
Commission's published Policy on Creed and the
Accommodation of Religious Observances, which states that
"Equality of treatment requires at a minimum that employees
receive paid religious days off, to the extent of the number of
religious Christian days that are also statutory holidays, namely
two days (Christmas and Good Friday)."
Endorsing arbitral case law, the Tribunal found no legal duty
compelling employers to provide two paid days of religious leave to
non-Western Christians to mirror the statutory holidays of
Christmas Day and Good Friday.
Emphasizing the traditional workplace bargain – the
exchange of services for pay – the Tribunal held that the
duty to accommodate could be met by providing employees with
options for scheduling changes that do not result in any loss of
pay to the employee. In the case of Markovic, such options
included (a) making up time when the employee was not otherwise
scheduled to work, (b) working on a secular holiday, subject to the
Employment Standards Act, when the facility was in
operation, (c) arranging to switch shifts with another employee, or
(d) adjusting the employee's shift schedule where possible. The
Tribunal held that scheduling changes, rather than paid time off
from the workplace, better reflect the workplace bargain since they
do not require employers to compensate employees for work not done.
As the Tribunal noted, "where the "problem" is the
need for time, the solution is the enabling of time".
The Tribunal rejected the Commission's argument that
employees suffer discrimination by having to negotiate time off for
religious observance, rather than having religious holidays
automatically recognized. According to the Tribunal, there was
nothing "nefarious" about the dialogue required to settle
upon a menu of options that would accommodate individual employees,
and such dialogue did not "impose an undue burden on those
employees". Rather, the dialogue and negotiation between
employers and employees was found to be an integral component of
the accommodation process.
We can conclude from the Markovic decision that the
accommodation of religious observance will not require in all cases
that employees be provided paid days off. Rather, the
Tribunal's position is that by providing a process for
employees to arrange for time off through options for scheduling
changes, without loss of pay, an employer can satisfy its duty to
accommodate, and it is only where scheduling changes would create
undue hardship that employers will be required to annually grant
employees a minimum of two days of paid leave for religious
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Please join members of the Blakes Commercial Real Estate group as they discuss five key provisions of a commercial real estate purchase agreement that are often the subject of much negotiation but are sometimes misunderstood.
Emotional culture is influenced in great part by the mindset and actions of leadership, although employees also play more of a role than they may realize in creating the culture that exists in the group.
The session will be led by Dr. Robert Brooks, an award-winning author and psychologist. In his presentation, Dr. Brooks will describe the mindset and realistic practices of leaders and staff that help to nurture and sustain a culture characterized by positive emotions, satisfying, respectful relationships, a sense of meaning and ownership for one’s work, and enhanced job performance. Examples will be offered to illustrate strategies for developing a positive emotional culture in an organization.
Join leading lawyers from the Blakes Pensions, Benefits & Executive Compensation group as they discuss recent updates and legal developments in pension and employee benefits law as well as strategies to identify and minimize common risks.
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.
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).