By David Brown.
(Originally published November 2013.)
Across Canada, it is not uncommon for many small businesses to close their operations for the period between Christmas and New Years. There are many good reasons for this, as business owners may be looking for family time while the kids are out of school, a visit to parents in distant cities, or a winter escape to Mexico.
For the owner/operator, closing a business for a period of time may be as simple as hanging a sign in the door which reads “Closed for the Holidays”. However, for two important reasons, this decision becomes more complicated when a business has employees to consider :
Can a business require employees to take their vacations at specific times, such as over the Christmas holidays?
If so, does imposing vacation over a Christian holiday, such as Christmas or Easter, have human rights implications for a diverse workforce that does not necessarily follow Western-Christian heritage?
There is a common perception in Canada that employees have control over when they take their vacation time. After all, they submit the vacation request, and more often than not it will be approved by their employer. In reality, however, employers have the right to manage their workplace as they see fit, which includes insuring appropriate staffing levels and making preparations for high and low seasons. Unless the employment contract reads otherwise, an employer has the right to assign when vacation time will be used.
This includes an employer’s right to temporarily close down its operations and require its employees to take vacations at specific times. If a business owner wants to go on a week-long fishing trip during the summer and take a week off over Christmas, she is within her rights to close the business and require staff to take their vacations at the same time.
Accommodating Religious Diversity
But how do mandatory vacation times interplay with an employer’s duty to accommodate religious beliefs? Consider the following example:
ABC Ltd. provides all of its staff with three weeks of paid vacation, which equals or exceeds Employment Standards legislation in its home jurisdiction. One of these weeks must be used over the Christmas holidays when the office is closed, typically starting December 24 and returning January 2. Remaining vacation can be taken at a time that is mutually agreeable to the employee and the employer.
Mohammed is Muslim, and is unhappy with this policy. He feels that it’s unfair that employees of Christian heritage are able to to celebrate their religious holidays while the business is closed and still get an additional two weeks of vacation to use at other times during the year. If he wishes to celebrate his own religious holidays, he has to use his vacation days for that purpose, while being forced to take an additional week at a time that has no significance to him. Mohammed would much rather work during the Christmas break, and receive an additional week vacation to celebrate his religious beliefs or take time away from work as he pleases.
Of course, religion is protected from discrimination in employmentunder the British Columbia Human Rights Code and similar legislation in jurisdictions across Canada. This includes the duty to accommodate religious beliefs and times for religious observance.
In cases such as the one presented above, the potential for discriminatory effect arises from the work schedule. For individuals that do not follow Western Christian heritage, the discrimination consists of the possible requirement to work or take vacation time on holy days, a requirement not imposed on Western Christians, at least with respect to Christmas day. Following on this, ABC Ltd. will have a duty to accommodate Mohammed’s religious beliefs, which will require the search for a solution that permits time off for religious observances, without adverse employment consequences.
In this context, ABC Ltd. would have an obligation to accommodate Mohammed’s religious beliefs by providing options for achieving the time off that he requires without loss of pay and without depleting existing employment benefits such as vacation time. For instance, Mohammed could be permitted to bank overtime or arrange for a compressed work week through an averaging agreement to take additional time off. If appropriate to his work place, he could be presented the option of substituting or swapping shifts with co-workers. Finally, if Mohammed has these options but elects not to use them, it would certainly be appropriate for ABC Ltd. to allow for him to use vacation days or take an unpaid leave of absence. These ideas for accommodating religious observance are non-exclusive and may not be appropriate to all employees or all work relationships.
As many courts and Human Rights Tribunals have noted, where the issue to be resolved is the need for time in religious accommodation, the solution is the enabling of time. Provided that employees are enabled to observe religious holy days without loss of pay and without having to encroach on pre-existing earned entitlements (such as vacation), an employer will have met its duty to accommodate.
To return to the original question of whether an employer with a diverse work force can close its operations over Christmas and require its staff to take vacation, the simple answer is yes. Vacation is normally set at the discretion of the employer, and it would have full authority to dictate when employees are required to take vacation time.
With respect to accommodating religious diversity, employers have the to duty explore options with staff to enable religious observance without loss of pay or benefits. However, this duty exists regardless of whether vacation is mandatory over the Christmas season, and does not alter an employer’s right to dictate when vacation time is to be used.
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