Time to give all employees the right to honour their own religious holidays, says employment lawyer

Of the eight statutory holidays in Manitoba, two are based upon Christian religious holidays: Good Friday and Christmas Day. 

If our human rights legislation prohibits differential treatment on the basis of religion, then why is it that only one religious group has its holidays statutorily protected?

Why do most workers get two Christian holidays off without question (whether they observe them or not), but if someone wants to observe a different religious holiday they have to ask permission, and often have to make up the time? 

The reality is that as our society evolves, so must our approach to issues like this.

It is time for a system that allows everyone to observe their religious days.

Not long ago, retail stores were closed on Sundays, because that was the day people went to church. Now, most stores are open on Sundays. 

It only follows that we should reconsider how we treat religious holidays.

That issue has been raised in the recent case of a Winnipeg grocery store owner who was given a $10,000 fine for opening on Good Friday this year.

Currently, there is a lot of confusion about how to treat other holidays. In my practice as an employment lawyer, I have often heard that some minorities are scared to ask for time off.

Others feel like "second-class citizens" and resent the fact that they have to ask for that time off, while co-workers have a legislated right to observe their holidays. 

In many cases, those who do ask for religious days off are told that they must use their vacation time. 

That is unfair, since people can enjoy Christmas and Easter without losing vacation days. 

No 'one size fits all' approach

Conversely, I often hear that employers must give non-Christian workers two additional paid days off for religious holidays.

That too would be unfair. But it's also untrue (since it would give them a greater benefit than their Christian colleagues).

It is time for a system that allows everyone to observe their religious days in a fair and equitable manner.  

One option would be to allow every employee two "floating" paid days off, to use as they see fit.  

Christians could choose to maintain the status quo and use those days for Christmas and Good Friday. Others would have the option of working on Christmas and Good Friday and taking two other days off, without feeling as though they are asking for special treatment.

I acknowledge that this is not a perfect solution; there is no "one size fits all" approach. If a factory employs 500 workers and 495 want Christmas Day off, it is not feasible to remain open on that holiday, just so that a handful of employees can come to work and take a different day off. 

In those situations, a different approach will be necessary — one that does not necessarily mean that the worker will get two extra paid days off. They could, for example, reschedule their shifts or accumulate overtime and then take the day off. 

Courts call for equality

That is consistent  with the judicial treatment of this issue — our courts and tribunals have confirmed that the goal is to find a way for workers of all religions to observe their holidays without a loss of pay.  

In 1985, the Supreme Court of Canada considered the case of O'Malley vs. Simpsons-Sears Ltd., in which Sears required its full-time employees to work Friday evening and Saturday shifts on a rotating basis.

Ms. O'Malley became a Seventh-day Adventist and since she could no longer work on her Sabbath (from sundown Friday to sundown Saturday), she was forced to accept part-time employment with a reduction in earnings and benefits. 

The Supreme Court of Canada found that this was a breach of her human rights and held that employers should find ways to allow employees to have time off for religious observance without losing pay.

Everyone should have equal access to time off for religious observance.

In 1994, the Supreme Court of Canada considered a request by Jewish teachers for access to a provision in their collective agreement that would allow them to have Yom Kippur off with pay.

Instead, their employer offered them an unpaid day off. That was found to be discriminatory, since the school calendar included two paid days off for Christian holidays.

Since teachers can only work during class times, there was no way to offer scheduling changes or other creative solutions, and the court found that the employees should be allowed to use the paid days off.

Don't 'outlaw' Christmas, but give employees options

In 2008, the Ontario Court of Appeal heard the case of Markovic vs. Autocom Manufacturing Ltd., in which Mr. Markovic filed a discrimination complaint after Autocom required him to take unpaid leave to observe Eastern Orthodox Christmas. 

The tribunal approved of a policy that would allow employees to choose from a menu of accommodation options, such as using outstanding vacation time or a leave of absence without pay. 

My suggestion is not to "outlaw" Christmas. 

Businesses could still close on Christmas if they choose, and employees would have the option of using one or both of their floating holidays for Christmas. 

But it would also allow people to have the opportunity to use those days for occasions that are important to them.

That is consistent with something we claim to value in 2019: equality. 

Everyone should have equal access to time off for religious observance.

This column is part of  CBC's Opinion section. For more information about this section, please read this editor's blog and our FAQ.

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