Sunday work, employees’ right to refuse, and employers’ obligations

By Tony Poland, LegalMatters Staff • While the right to refuse Sunday work is becoming much less common, employers still have a duty to accommodate those who make a legitimate request, says Toronto employment lawyer Jeffrey M. Andrew.

Sunday work is not new, especially in the retail sector. In 1992, Ontario’s New Democratic Party amended the Retail Business Holidays Act to permit Sunday shopping in the province.

Prior to that, “most workplaces shut down on Sundays for a day of rest that reflected the predominantly Christian view of society which is no longer the case,” says Andrew, a partner with Cavalluzzo LLP.

“One of the compromises of Sunday openings in Ontario was that employees in the retail sector could refuse to work on Sundays but the number of workers to whom that applies may be reducing over time,” he says. 

That is because retail workers could not refuse to do so when they agreed to Sunday work when hired and careful employers who want them to do so now specify that, he says. So, the number of workers who can refuse is declining as people retire.

Workers are protected by the human rights code

But even though the law may have changed, workers are still afforded some protection under the Ontario Human Rights Code, he says, and employers who fail to respect employees’ religious and other rights could find themselves facing the consequences.

“Employers have to be careful because if somebody says, for example, ‘I am an observant Christian and I practice my faith, so taking a day of rest is part of my religious observance,’ they need to consider that,” Andrew tells LegalMattersCanada.ca.

The same is true when it comes to bringing new workers on board, he says.

“Employers who refuse to hire someone in that situation are risking a discrimination complaint,” says Andrew.

The issue of Sunday work refusal has been heating up in Manitoba with the provincial government there looking to amend legislation to revoke that right for future retail workers.

Presently, the legislation allows employees to take a Sunday off and not be penalized if they give 14-days notice.

The Manitoba government is proposing an amendment that would prohibit employees from refusing Sunday work if they agree in writing to work the shifts when they are hired. As well, employees would not be permitted to refuse Sunday work if their collective agreement states that they cannot or if their employer has four workers or fewer. 

UFCW Local 832 president Jeff Traeger tells CBC it is important to have the right to refuse Sunday shifts to allow workers to maintain a work-life balance. 

Right to refuse ignores ‘the needs of the workers’

“If you take away the right to refuse, you are completely ignoring the needs of the workers,” he tells CBC. “It is harmful for working families not to have that ability to have some time together away from work.” 

Andrew notes that in provinces such as Ontario, working on Sunday is a norm for many and it appears Manitoba is revising its employment standards to fall in line with most of Canada.

However, in an interview with CBC, Manitoba NDP Finance Critic Mark Wasyliw says just because other provinces do it, doesn’t mean they should.

“We shouldn’t be trying to have a race to the bottom, we should be leading the country in fairness and having secure and safe workplaces where we treat all our workers fairly,” he told CBC.

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Still, Andrew says working on Sunday is part of a society that continues to evolve.

“Sunday work became allowed and one of the compromises was people, especially those in the retail sector, could refuse to work but that’s been changing over time,” he says. “My sense is Manitoba is behind Ontario. You have to ask yourself when we increasingly no longer look at ourselves as a quote-unquote Christian society whether Sunday or even other holidays are really going to be the norm in the future.

“When you have many employees who are other religions besides Christian you start to ask yourself why we have such statutory holidays as Christmas or Easter.”

Andrew says working on Sunday has long ceased to be unusual.

‘Retail work is virtually seven days a week now’

“Retail work is virtually seven days a week now, especially in large retail such as grocery stores,” he says. “It’s pretty common for people to be told that they have to work on Sunday.”

Both employers and potential workers should be upfront when it comes to expectations, Andrew says. 

For employers, it is important to remember that while “claiming discrimination and proving discrimination are two different things,” running afoul of the human rights code can be costly.

“If somebody otherwise seems like a good candidate and the only thing that affected that candidacy was a refusal to work on Sunday for religious reasons then employers face legal jeopardy,” he says. “It is effectively discrimination to refuse to offer someone a job simply because of a religious practice that could have easily accommodated.”

Employees should also keep in mind that there should be a legitimate reason for refusing Sunday shifts.

“I have seen cases where people claim they cannot work on Sunday because it is a day of worship when, in fact, they do everything other than go to church,” he says. “That is not going to be considered credible.”

In the end, people need to determine whether they can live with the terms of their employment, says Andrew.

“You should keep in mind your minimum necessities in terms of working,” he says. “If you are not a religious person then it is just a lifestyle question. You can refuse to take a job with weekend shifts, but it may limit the opportunities available to you.”

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