We talked to employment lawyer, Jean-Alexandre De Bousquet, who gave us his take on the sensitive issue
In order for the duty to accommodate to be triggered, employees must have a legitimate reason for making a request. If workers claim to have a disability, they must present medical evidence. Similarly, if it’s a religious requirement, they must truly be practitioners of that religion – and the religious requirement must be real and not fabricated. The need must be compelling.
So, what are the steps for approving duty to accommodate in regards to religion?
We talked to employment lawyer, Jean-Alexandre De Bousquet, who gave us his take on the sensitive issue.
“If a case for a religious accommodation request went to a tribunal, an employee could call upon a Pastor to testify that they are a genuine practitioner of that religion,” he explained. “And that the requirement in question is a legitimate one.
“Some religious requirements are well-known, whilst others are more obscure; the most important issue that they’re not entirely fabricated. For instance, a Human Rights Tribunal have sided with Muslim employees, working in kitchens for example, who refused to taste food that could contain pork when asked to by their employer.
“However, Courts have sided against individuals of Rastafarian religion who stated that their faith required them to smoke marijuana. Similarly, if a Catholic asked an employer to have every Sunday off – that Catholic employee would have to seek proof from their Priest that they were practicing, and not being deceitful. Employers require more than a blanket assertion of ‘I’m a Christian and I’m going to stay home every Sunday’; if all the employee was actually going to do was watch TV.
“The duty to accommodate is a two-way process, in which both sides need to participate in good faith – and both parties need to be flexible.”
So, what’s the biggest mistake employers make when it comes to dealing with accommodation requests? De Bousquet believes it’s a tendency to go with their own personal opinions rather than those of a learned professional.
“Employers also have a tendency to say that the evidence provided by the worker is insufficient. For example, an employee will bring a doctor’s note informing the employer that their patient needs certain amendments to their role – and the employer will immediately say ‘no’. If the employer continually asks for more and more proof, they’re simply not acting in good faith.”
