Are employers required to accommodate an employee at Christmas?
If an employee requests December 25 off for “family time” or religious events, are those protected grounds under Canadian human rights law? This arises in industries that stay open 365 days a year, such as hospitals, public transit, variety stores, movie theatres and some restaurants.
For those employees working in these industries, can an employee request accommodation to have December 25 off on the grounds of family status or religion?
Christmas off as a Family Status Accommodation
Employers will not be required to accommodate an employee’s request for accommodation on Christmas day for “family time”. This is not a protected ground under Canadian human rights law and is simply a preference.
“Family Status” is a protected ground under human rights law and refers to necessary caregiving duties between a parent and child. Accommodation (up to undue hardship to the employer) may be required if an employee is unable to work because of required caregiving duties, but these will rarely be the factors triggering a request on Christmas day, particularly if other parents or caregivers are available that day to perform the caregiving duties.
Christmas off as a Religious Accommodation
Religious accommodation will have more traction. Under Canadian human rights law, employers are required to accommodate employees’ religious beliefs and practices to the point of undue hardship. This might include requests for religious observances, including Christmas.
All jurisdictions in Canada include religion or creed as a human right to be protected, with Christianity enjoying no greater weight than any other religion during the Christmas holidays.
- Inform the employer about their religious requirements in a timely manner.
- Cooperate with the employer to provide reasonably requested documentation to support the request. This could include a letter from a priest or pastor confirming membership in a church that requires attendance on Christmas Day.
- Be able to demonstrate a genuinely held belief triggering the request.
- An employer must consider the request to accommodate but is not obligated to automatically grant accommodation.
- Once accommodation is granted, the employer must provide an accommodation that respects the employee’s dignity and allows them to fully participate in the workplace, not necessarily the best possible accommodation or exactly what the employee requests.
Factors to Consider for Religious Accommodation
1. Reasonableness: The accommodation should not impose undue hardship on the employer. This includes factors such as cost, disruption to the workplace, and impact on other employees.
2. Sincerity of Belief: The individual requesting the accommodation must have a sincerely held religious belief. This does not necessarily mean that the belief must be part of a mainstream religion or recognized by all followers of that religion.
3. Impact on Others: The accommodation should not infringe on the rights or beliefs of others. This includes both coworkers and customers.
4. Nature of Work: The nature of the job and the workplace may affect the feasibility of certain accommodations. For example, certain safety regulations may limit the types of accommodations that can be made.
5. Size of the Organization: Larger organizations may have more resources and flexibility to provide accommodations than smaller ones.
6. Alternatives: If there are alternative accommodations that would fulfill the individual’s religious needs without causing undue hardship, these should be considered.
7. Fairness: The accommodation should be fair and not give the individual an unfair advantage over others.
8. Consistency: The organization should be consistent in how it handles requests for religious accommodation. This helps to ensure fairness and avoid claims of discrimination.
The right to accommodation is not universal. Employers are only required to accommodate up to “undue hardship” to the employer. This is a high threshold that is determined based on factors like cost, outside sources of funding, and health and safety requirements. If an employer can prove that the accommodation would cause undue hardship, they may not be required to provide it.
As Hallmark and Hollywood movies will attest, Christmas is full of emotion and big feelings. An employer’s denial of a request to attend what may be a decades long family tradition will trigger an emotional reaction beyond contractual niceties. On the other hand, granting the request to the most upset employee will most certainly have a ripple effect on some other employees prepared to accept the sacrifice.
In many cases, it’s impossible to make everyone happy. Rotating shift obligations year to year and having an objective rationale for selecting employees to work on December 25 will help reduce the overall temperature. Throwing in some perks may also help incentivize employees less fussed about working at Christmas.
If you need a hand navigating this highly-charged time of the year, give us a shout!