As the busy holiday season approaches, employers face the annual challenge of balancing business needs with their employees’ vacation requests and religious observances. Our sister publication HR Law Canada had the opportunity to sit down with Stuart Rudner, employment lawyer, mediator and founder of Rudner Law.
“You should be handling it very delicately and also very supportively,” he said. “As our society becomes more diverse and multicultural, I think you have to be cognizant of people with different backgrounds and obviously be respectful of different backgrounds.”
In Canada, statutory holidays such as Christmas Day, Boxing Day, and Easter are based on Christian traditions. However, employees of other faiths may observe different religious holidays. Rudner points out that employers have a duty to accommodate these employees by finding ways to give them time off without a loss of pay.
For example, the Ontario Human Rights Commission has “essentially said you don’t have to give everyone two days of their own faith, but what you have to do is find ways to accommodate them by giving them the time off without a loss of pay,” he said. “That could mean trading days. It could be, ‘Well, I’ll work Christmas Day, but I’ll take a different day off. Or it could be “I will work overtime all of this week and then take my holiday off next week.’”
One common misconception among employers is that they can require employees to use vacation days for religious holidays that don’t fall on statutory holidays.
“People are told to use their vacation days for religious holidays, which isn’t right,” he said. “If one religion doesn’t have to use their vacation days, then nobody should.”
Unused vacation time
Beyond religious accommodations, employers must also address the issue of unused vacation time as the year draws to a close.
“This always comes up at this time every year,” said Rudner. “We have all these people who haven’t taken their vacation, and can we just pay them out? The answer is, generally, no. If it’s statutorily required, you’re required to give them the time off. You can’t just pay them out, even if they don’t want to take the time off.
In Ontario, employees who have worked less than five years are entitled to two weeks of vacation, and those with five or more years are entitled to three weeks. Employers have an obligation to ensure that this statutory vacation time is taken, he said.
“The employer gets to decide when the employee takes vacation time,” Rudner said. “Even if the employee puts in a request, if it doesn’t work due to business needs or because of staffing issues, you can always decline that request — unless the person’s contract says otherwise — and impose your preferred dates.”
Best practices and documentation
While employers can schedule vacation time for employees who haven’t used it, Rudner said this may not be the best HR approach. “Usually this should start with a conversation where you ask the person when they want to take their vacation,” he said. “But, if they are refusing to, then you can just schedule it.”
For vacation time beyond the statutory minimum, employers have more flexibility. They can allow employees to carry it over, pay it out, or implement a “use it or lose it” policy.
“When we draft our vacation policies, we separate the statutory from the additional because the statutory must be taken,” Rudner said. “The employer has a choice for that additional time.”
Clear documentation regarding vacation policies and entitlement can’t be overlooked, he said.
“Just document everything really clearly,” he said. “If you’re going to either on an ad hoc basis allow someone to accrue it, or if you just have a system where they can accrue it, just make sure you’re tracking it carefully. Follow your policies, and track vacation days carefully because the number of days remaining often becomes a contentious issue at the time of dismissal.”
Diverse workforces
In the context of an increasingly multicultural workforce, employers should also be mindful of accommodating partial days off or flexible hours for employees preparing for religious or cultural celebrations.
“Some people need Christmas Eve to get ready, so they’d like to be able to stop working at noon on the 24th,” Rudner said. “For people of different backgrounds with different holidays that don’t get the day off, even if they don’t need the full day, I’ve certainly worked with a lot of clients that to try to accommodate them, let them leave work early for a few days so they can prepare dinners, whatever, and just make up the time somewhere else.”
While not necessarily a legal requirement, Rudner said this flexibility is a best practice. “As we become more diverse, just be aware of that,” he said.
For more information about Rudner Law’s Alternative Dispute Resolution, visit https://www.rudnerlaw.ca/alternative-dispute-resolution/. Stuart Rudner can be reached at 416-864-8500 (phone or text) or [email protected].
