Employees may request time off to celebrate a religious holiday or request a modified schedule to observe their respective holy day. Creed is a protected ground under the Ontario Human Rights Code (the “Code”), meaning employees are protected from creed-related discrimination in their workplace. So, what is required of an employer when an employee requests a change in their schedule or a day off due to a religious observance?

Creed

The Code protects “creed”. The Ontario Human Rights Commission’s working definition, which has been adopted by the Human Rights Tribunal of Ontario (the “Tribunal”), states that a creed:

a. Is sincerely, freely and deeply held;

b. Is integrally linked to a person’s self-definition and spiritual fulfilment;

c. Is a particular, comprehensive and overarching system of belief that governs one’s conduct and practices;

d. Addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a creator and/or a higher or different order of existence; and

e. Has some “nexus” or connection to an organization or community that professes a shared system of belief.

For example, in Huang v. 1233065 Ontario, the Tribunal held that Falun Gong constitutes a creed, despite its followers describing their practice as a “spiritual cultivation practice” as opposed to a “religion”. Personal or political beliefs, such as one’s personal objection to government or business policies requiring masks to be worn indoors during the COVID-19 pandemic, do not fall within the definition of “creed” (see Sharma v Toronto (City)).

The duty to accommodate under the Code

Section 11 of the Code generally prohibits employers from imposing requirements that result in the exclusion or restriction of a group of people who identify with a prohibited ground of discrimination, except where the requirement is a “bona fide” job requirement that cannot be accommodated to the point of undue hardship.

In other words, even though an employer’s policy or practice regarding hours of work might not be discriminatory on its face, it may have the effect of excluding or restricting employees of certain faiths from employment if the required hours of work are at odds with the creed-based practice. For example, an employee who practices the Jewish faith may not be able to work from Friday at sundown to Saturday at sundown to observe Shabbath. A policy which requires all employees to work during that time without contemplating the potential need for creed-based accommodation may violate s. 11 of the Code.

When an employee requests an accommodation based on creed, the employer has a duty to accommodate to the point of undue hardship. Employers should ensure they understand the nature of the request and work with the employee to explore how the employee’s duties can be modified to accommodate their creed-related need. Can the problematic shift be switched with another employee? Can the start and end time be modified to accommodate an inability to work after sun-down? 

Requests for an annual observance like Eid or Yom Kippur are usually accommodated by allowing a modification to the work schedule (i.e. a switched shift), use of lieu time, applicable leaves, personal days, or the like. While there is little precedent requiring employers to provide additional paid leave to employees for creed-related reasons, the Tribunal has indicated that employees should be given options that permit the time off without loss of pay (see Markovic v. Autocom Manufacturing Ltd.)

The employer’s duty to accommodate is to the point of undue hardship, based on the factors outlined in the Code including cost, health and safety, and outside sources of funding. These hardships must be substantial. Cost must be so substantial that it would impact the viability of the business or alter the essential nature of the enterprise. 

Tips and takeaways for employers 

• An employee’s request for accommodation for a creed-based observance must be accommodated to the point of undue hardship.
• When an accommodation request is made, employers must turn their mind to the request. Consider how the employee’s schedule or duties may be modified to accommodate the creed without loss of pay.
• Don’t make assumptions about one employee’s accommodation needs based on another employee of the same religion. The same religious observance may be practiced differently and the accommodation process must be individualized.
• Undue hardship is a high threshold. Scheduling inconveniences or some cost to the business generally have to be tolerated. 

Written by Evaleen Hellinga