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Celebrating Passover – A few thoughts on the law of religious accommodation

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This past month, my colleagues and I have been thinking and writing a lot about religious and cultural observances in the workplace and with Passover around the corner, I thought it would be timely to address how this very important Jewish holiday intersects with the law of religious accommodation.

In a couple of weeks, Jews around the world will gather in their homes and celebrate the freedom of the Hebrew slaves from bondage in ancient Egypt.  Passover is observed over an eight day period. During the eight day period, Jews are not permitted to eat leavened bread, but rather eat matzah or unleavened bread. The reason Jews eat unleavened bread is to remind themselves of how quickly the Hebrew slaves fled Egypt. So quickly in fact that their bread did not have time to rise.

There are various degrees of observance when it comes to Passover. The more observant Jews spend the weeks before Passover ensuring that there are absolutely no leavened foods in their homes. Other Jewish families use special dishes during the holiday. There are many ways which Jews interpret and observe the prohibition against eating leavened bread. And while it is possible to control our home environment, it is obviously more difficult to control what happens at work.

What if an employee insists for example, that no leavened products be allowed to be heated in the office microwave? Or what if the employee goes a step further and requests a separate microwave for warming up Passover food? Or a special fridge? Or dishes? Would the employer have to accommodate such a request?

Dietary restrictions are certainly not unique to Passover. There are many other holidays (and life circumstances) which require adherence to strict dietary restrictions.  For those who suffer from life threatening allergies, dietary restrictions form part of daily life. One can easily imagine a situation where an employer might be faced with a special request by an employee who is deathly allergic to peanuts. It would not be too difficult for the employee to argue that certain safeguards would have to be put into place at work. The Passover case is somewhat unique because the request is not being made based on a life threatening condition, but as a religious accommodation issue.

The guiding principle in the law of accommodation is that an employer is required to accommodate to the point of “undue hardship”. The law of undue hardship has a high threshold and a variety of factors are usually considered including financial hardship, security, health, safety and other practical constraints. In determining what is “undue”, the case law is clear that both employers and employees must work together in trying to find a solution. Both employer and employee must be open to a variety of measures. The employee seeking accommodation should not expect a perfect solution. However, the employer has to consider a wide range of options (and be able to show what was canvassed at the time) in order to meet its obligations under human rights law.

This all sounds very reasonable. Perhaps even straightforward. However, based on experience, these principles can be tough to enforce — particularly for smaller businesses with fewer resources.  One can easily imagine how a request for a separate set of dishes or a microwave might be received. Employers need to be very careful and take such requests seriously. This is no time for intolerance or poor humour (which is never a good idea).

In my example, asking for a separate microwave might be considered reasonable and not “undue”. Whereas, insisting that your employer provide a separate set of dishes might not be seen in the same light. Under this example, the employee might have to consider other options such as bringing in their own dishes or perhaps the employer could supply paper plates if that were deemed suitable. A separate fridge might not be considered a reasonable request. An alternative solution might be that the employer considers implementing a workplace policy which allocates a separate area in the fridge for unleavened foods during the eight days of Passover.

The case law is clear; while employers have a high expectation to meet and must treat requests from employees for religious accommodations seriously, employees too must be open to a range of solutions. Underlying the case law are the concepts of tolerance and reasonableness. The law of religious accommodation requires a certain amount of creativity and open-mindedness to work. On that note, I wish all of those celebrating Passover a happy and healthy holiday with as little workplace friction as possible.

Marie-Helene Mayer