Can you force an employee to provide proof of their religion or their religious beliefs? That was, essentially, the question posed recently by one of the members of my Canadian HR Law group on LinkedIn. The group is an active one with many discussion threads, but this was a discussion that generated a particularly high level of interest and commentary.
Duty to accommodate religious beliefs
The issue of one’s religion or religious beliefs will only be relevant in the employment context when there is a request for accommodation. Typically, the request for accommodation of religious beliefs will be for time off; either days off to observe holidays or time off during the day to pray, or for specific scheduling requests, such as not being required to work on the employee’s weekly Sabbath or day of rest.
In a multicultural society such as ours, accommodation of different religions can be complicated. Our “official” work calendar includes several statutory holidays that are based upon religious holidays, including Christmas and Easter. However, employees of other religions have historically been required to use their vacation or sick days in order to observe their own religious holidays. Not surprisingly, this prompted arguments that the system was inherently unfair and discriminatory, as Christian employees received religious days off while still being able to enjoy all of their vacation and sick days. As a result, for a while there was a commonly held view that employers were required to provide employees of other religions with an equal number of religious days off. However, the currently prevailing view is that employers don’t have to provide an equal number of religious days off, but they do have to make efforts to accommodate employees of other religions by seeking to find ways in which they can have time off to fulfill their religious obligations without loss of pay. This can be achieved by, for example, allowing an employee to work overtime and then use the time off in lieu of overtime pay in order to observe religious holidays. Alternatively, it can be achieved by adjusting the shift schedule within the organization. As always, the duty is to accommodate is to the point of undue hardship.
Sometimes the request is not for an entire day off, but for breaks during the day to allow the employee to engage in prayer. I have worked with several organizations in order to institute prayer rooms that will allow employees to meet their religious obligations without having to leave the workplace in order to attend at a house of prayer that can be miles away.
Questioning the veracity of a religious belief
Whatever the particular request, employers will sometimes question the veracity of the employee’s beliefs. Implicitly, they will question whether the employee truly believes that they are required to have the day or time off, or whether they are simply trying to take advantage of the system. This will lead to the potential request for proof of religion or religious beliefs. The challenge that employers will face, however, is that no religion has uniform views of what their members must do. For example, within the Jewish religion, there are orthodox Jews, conservative Jews, and reform Jews, as well as many other groups and sub groups. Other religions are similar. Some Catholics are strictly observant, while others are non-practicing. As a result, the case law has developed so as to recognized this and, rather than requiring objective proof that a particular day off is required by an employee’s religion, they will accept evidence of the employee’s subjective beliefs, so long as they are sincerely held. In other words, an employer should not expect to be able to respond to an employee’s request for a religious day off by producing an opinion from a religious leader stating that the religion does not require them to have that day off. However, if the employer can show that the employee does not sincerely believe that they are required to take a day off, and is being disingenuous, they will have a much stronger argument to make.
It must also be kept in mind that, as one of the members of my LinkedIn group pointed out, religious views and behaviors change over time. An individual that has not observed a religious holiday in decades may suddenly decide to start. Again, as long as they are doing so pursuant to a sincerely held belief, then they will be entitled to accommodation to the point of undue hardship.
Like the accommodation of disability, an employer is entitled to be satisfied that the request is legitimate. However, they will be limited with respect to how intrusive their inquiries and requests for proof can be.