In the context of the increasing prevalence of vaccine mandates, employee requests for accommodation on religious grounds are becoming common. Religious beliefs and practices and the resulting accommodation requests can be varied and tricky. Today we will take a look at what employers should know and do about requests for accommodation based on religion.
What Do Employers Need to Accommodate?
Human rights legislation across Canada provides employees with protections from discrimination on the basis of creed or religious beliefs or practices. Employers must accommodate up to the point of undue hardship.
In Ontario, the Human Rights Code (“the Code”) does not define the protected ground of “creed,” but decision makers have interpreted creed to include
- Religious beliefs and practices and
- “[N]on-religious belief systems that, like religion, substantially influence a person’s identity, worldview and way of life.”
Hallmarks of a creed include that it must be sincerely held and integrally linked to a person’s identity. While it does not have to be a religion exactly, a creed should have an overarching system of belief that governs a person’s conduct and practices. Additionally, it should address the big questions about existence, the purpose of life, death, a creation story and possibly of an afterlife. Creed should also have some sort of community element, so likely a connection to a group of people who share the same beliefs.
What’s not a creed? Typically someone’s personal beliefs are not going to rise to the level of a creed. Creeds that include hatred or violence towards other groups or that have criminal elements could possibly meet the definition of creed but will not garner human rights protection.
What Can Employers Ask?
Generally, employers should accept at face value the employee’s assertion that they need accommodation due to a religion/creed. However, employers can and should engage the employee in a conversation to understand the nature of their accommodation request and whether the requested accommodation is truly related to their creed or is more of a personal preference.
Employers can require more information from employees when they have reason to doubt that the employee’s request is being made in good faith. For example, if there is evidence to suggest that the employee is not actually a member of that religion. However, the fact that an employee is a new member of a creed or that their beliefs are not long-held does not disentitle them from an accommodation.
Requests for more information should focus on the employee’s accommodation request and should not be deep dives into the employee’s personal life. Just like employer inquiries regarding employee requests for accommodation on grounds of disability, the employer should only be seeking the information it needs to determine appropriate accommodation and no more. Like personal health information, information about an employee’s creed-based accommodation should be kept as confidential as possible.
Employers have a duty to accommodate employees up to the point of undue hardship. In determining if an accommodation will rise to the level of undue hardship, employers can consider costs, health and safety and impacts on the human rights of others. In cases of vaccination exemptions, health and safety may be a significant enough factor that employers cannot allow employees seeking exemptions to continue working. Typically in these situations, assuming the request is genuine, the employee could be placed on an unpaid leave.
In many situations where employees assert they are entitled to a vaccination exemption based on religion or creed, they may actually be asserting a personal preference. The Ontario Human Rights Commission’s position is that “personal preference” or a “singular belief” against vaccination does not entitle an individual to accommodation under the Code. Check out the OHRC’s policy statement on vaccine mandates for more on this.
If you have questions about the duty to accommodate based on creed, get in touch for a consultation.