Do we have to provide Jewish employees with additional paid holidays?
Question: We provide 10 paid miscellaneous days for employees to take care of sick days, child care, elder care, bereavement and religious holidays. I am told there was a Supreme Court ruling which decided that Jewish holidays are over and above any paid miscellaneous days we grant. So, in addition to the 10 paid days we provide, we have to provide our Jewish employees with additional paid Jewish holidays if they so wish. Can you confirm this? What case was it? Do other religious groups receive the same treatment?
Answer: It is not a “hard-and-fast” rule that employers must provide extra paid days off for employees who wish to observe Jewish or other religious holidays. Rather, whether an employer has met its duty to accommodate an employee’s need to fulfill her religious obligations will be assessed on a case by case basis.
There was a 1994 case from the Supreme Court of Canada which held that three Jewish teachers had to be provided with a paid day off to observe the religious holiday of Yom Kippur. In Chambly (Commission scolaire régionale) v. Bergevin, a 1994 ruling, the Supreme Court considered the case of three teachers who grieved under their collective agreement, alleging religious discrimination because they had not been provided with paid time off to observe Yom Kippur (they were granted unpaid leave).
The teachers’ collective agreement recognized the right of every teacher to full and equal exercise of their rights and freedoms granted under Quebec’s Charter of Human Rights and Freedoms. Under the collective agreement, the school board agreed to respect those rights and freedoms without distinction, exclusion or preference capable of constituting discrimination within the meaning of the charter.
Up until 1983, the board had granted Jewish teachers leave with pay for Yom Kippur. The collective agreement also provided for paid leaves of absence for personal reasons, either on specified grounds or for reasons which the school board considered valid. However, when the teachers applied for the day off with pay to observe the holy day, their requests for pay were denied.
The majority of the Supreme Court ruled the calendar which fixed the teachers’ work schedule and formed part of the collective agreement was discriminatory in its effect on Jewish teachers because Jewish teachers were not provided with paid time off to observe their religious holidays.
The court found the employer had a duty to take reasonable steps to accommodate this group of employees who were adversely effected and the employer had failed to take reasonable steps to accommodate in refusing to pay the teachers for the holy day. The collective agreement provided for time off with pay for valid reasons; the court concluded the absence of a teacher to observe a holy day constituted a good reason for absence. Moreover, such absences had been compensated in the past.
Therefore, the court determined that to pay the teachers for their absence on Yom Kippur did not constitute an unreasonable burden on the employer.
However, one of the important facts the court relied on in determining that the teachers must be provided with a paid day off was that the teachers’ schedules could not be modified to allow them to work on other days to make up for the paid day of leave for Yom Kippur. The result in Chambly may have been different had reasonable scheduling changes been available for the teachers to allow them to “make up” the paid time.
For example, in a case which followed, Chambly, Richmond v. Canada (Public Service Commission), the Federal Court of Appeal concluded the employer had met its duty to accommodate several Jewish employees when it provided them with unpaid leave to observe the Jewish high holidays, and gave them several options to redress the loss of their pay, including the use of annual leave or the opportunity to work extra hours.
Similarly, in Ontario (Ministry of Community and Social Services) v. Grievance Settlement Board, the Ontario Court of Appeal said an employer had met its duty to accommodate an employee who was an observant member of the World Wide Church of God when its policy provided that scheduling changes were available so employees could fulfil their religious obligations without having to lose wages or encroach on pre-existing earned entitlements such as vacation time.
In this case, the court found the employer had satisfied its duty to accommodate the religious requirements of the employee by providing him with appropriate scheduling changes because he was permitted to work and bank extra hours and then use the banked hours to observe holy days. As a result, the employer was not required to provide the employee with paid days off in excess of those provided to other employees in its workforce.
These cases suggest an employer’s duty to accommodate requires that employees be permitted to observe religious holidays without incurring a wage loss. However, employers are not necessarily required to provide extra paid days off if an employee’s need to fulfil her religious obligation can be accommodated in another way.
In some instances, it may be reasonable for employees to use paid miscellaneous days for such observances, although there is some suggestion employees should not have to encroach on pre-existing earned entitlements, such as vacation time.
A reasonable solution is to provide employees with the choice of either using their paid miscellaneous days to observe the religious holidays or working and banking extra hours for use on a holy day.
It is likely that only when an employer cannot provide a miscellaneous “free” day, or cannot provide an opportunity to “make-up” time by working extra hours that it must provide a paid day of leave over and above that which is given to other employees. These principles will apply equally to any employee who wishes to observe a specific holy day for which paid leave is not already provided, regardless of that employee’s religious affiliation.
As you can see from the cases, the legal result in any given situation is very fact specific and depends upon a complete review of all of the circumstances. For a more detailed assessment of your particular situation, you may wish to consult legal counsel.
For more information see:
• Chambly (Commission scolaire régionale) v. Bergevin, 1994 CarswellQue 78, 1994 CarswellQue 114, 4 C.C.E.L. (2d) 165 (S.C.C.).
• Chambly, Richmond v. Canada (Public Service Commission), [1997] F.C.J. No. 305 (leave to appeal to the Supreme Court of Canada denied, [1997] S.C.C.A. No. 290].
• Ontario (Ministry of Community and Social Services) v. Grievance Settlement Board, [2000] O.J. No. 3411.
Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or [email protected].
Answer: It is not a “hard-and-fast” rule that employers must provide extra paid days off for employees who wish to observe Jewish or other religious holidays. Rather, whether an employer has met its duty to accommodate an employee’s need to fulfill her religious obligations will be assessed on a case by case basis.
There was a 1994 case from the Supreme Court of Canada which held that three Jewish teachers had to be provided with a paid day off to observe the religious holiday of Yom Kippur. In Chambly (Commission scolaire régionale) v. Bergevin, a 1994 ruling, the Supreme Court considered the case of three teachers who grieved under their collective agreement, alleging religious discrimination because they had not been provided with paid time off to observe Yom Kippur (they were granted unpaid leave).
The teachers’ collective agreement recognized the right of every teacher to full and equal exercise of their rights and freedoms granted under Quebec’s Charter of Human Rights and Freedoms. Under the collective agreement, the school board agreed to respect those rights and freedoms without distinction, exclusion or preference capable of constituting discrimination within the meaning of the charter.
Up until 1983, the board had granted Jewish teachers leave with pay for Yom Kippur. The collective agreement also provided for paid leaves of absence for personal reasons, either on specified grounds or for reasons which the school board considered valid. However, when the teachers applied for the day off with pay to observe the holy day, their requests for pay were denied.
The majority of the Supreme Court ruled the calendar which fixed the teachers’ work schedule and formed part of the collective agreement was discriminatory in its effect on Jewish teachers because Jewish teachers were not provided with paid time off to observe their religious holidays.
The court found the employer had a duty to take reasonable steps to accommodate this group of employees who were adversely effected and the employer had failed to take reasonable steps to accommodate in refusing to pay the teachers for the holy day. The collective agreement provided for time off with pay for valid reasons; the court concluded the absence of a teacher to observe a holy day constituted a good reason for absence. Moreover, such absences had been compensated in the past.
Therefore, the court determined that to pay the teachers for their absence on Yom Kippur did not constitute an unreasonable burden on the employer.
However, one of the important facts the court relied on in determining that the teachers must be provided with a paid day off was that the teachers’ schedules could not be modified to allow them to work on other days to make up for the paid day of leave for Yom Kippur. The result in Chambly may have been different had reasonable scheduling changes been available for the teachers to allow them to “make up” the paid time.
For example, in a case which followed, Chambly, Richmond v. Canada (Public Service Commission), the Federal Court of Appeal concluded the employer had met its duty to accommodate several Jewish employees when it provided them with unpaid leave to observe the Jewish high holidays, and gave them several options to redress the loss of their pay, including the use of annual leave or the opportunity to work extra hours.
Similarly, in Ontario (Ministry of Community and Social Services) v. Grievance Settlement Board, the Ontario Court of Appeal said an employer had met its duty to accommodate an employee who was an observant member of the World Wide Church of God when its policy provided that scheduling changes were available so employees could fulfil their religious obligations without having to lose wages or encroach on pre-existing earned entitlements such as vacation time.
In this case, the court found the employer had satisfied its duty to accommodate the religious requirements of the employee by providing him with appropriate scheduling changes because he was permitted to work and bank extra hours and then use the banked hours to observe holy days. As a result, the employer was not required to provide the employee with paid days off in excess of those provided to other employees in its workforce.
These cases suggest an employer’s duty to accommodate requires that employees be permitted to observe religious holidays without incurring a wage loss. However, employers are not necessarily required to provide extra paid days off if an employee’s need to fulfil her religious obligation can be accommodated in another way.
In some instances, it may be reasonable for employees to use paid miscellaneous days for such observances, although there is some suggestion employees should not have to encroach on pre-existing earned entitlements, such as vacation time.
A reasonable solution is to provide employees with the choice of either using their paid miscellaneous days to observe the religious holidays or working and banking extra hours for use on a holy day.
It is likely that only when an employer cannot provide a miscellaneous “free” day, or cannot provide an opportunity to “make-up” time by working extra hours that it must provide a paid day of leave over and above that which is given to other employees. These principles will apply equally to any employee who wishes to observe a specific holy day for which paid leave is not already provided, regardless of that employee’s religious affiliation.
As you can see from the cases, the legal result in any given situation is very fact specific and depends upon a complete review of all of the circumstances. For a more detailed assessment of your particular situation, you may wish to consult legal counsel.
For more information see:
• Chambly (Commission scolaire régionale) v. Bergevin, 1994 CarswellQue 78, 1994 CarswellQue 114, 4 C.C.E.L. (2d) 165 (S.C.C.).
• Chambly, Richmond v. Canada (Public Service Commission), [1997] F.C.J. No. 305 (leave to appeal to the Supreme Court of Canada denied, [1997] S.C.C.A. No. 290].
• Ontario (Ministry of Community and Social Services) v. Grievance Settlement Board, [2000] O.J. No. 3411.
Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or [email protected].
