Refusal to Mask Up

The Alberta decision of Feasby, J. in Benke v Loblaw Companies considered a claim made by the plaintiff employee who refused to wear a mask or similar device in the course of his employment, one which required him to visit stores. No medical evidence was offered to support his position.

The company chose not to terminate his employment but rather placed him on an unpaid leave of absence. This continued even until trial. The employer’s position was that, given that the mask mandate was since rescinded, that he was able to return to work.

The court rejected the constructive dismissal claim as it found that the employer’s action was reasonable. It dismissed the claim.

This is consistent with similar cases in which the employer had used this leave of absence approach to deal with employees who had refused to vaccinate, contrary to the employer’s policy.

Vaccine

The September 2022 case of Parmar v Tribe Management, a decision of the B.C.S.C. considered the issue of an employer mandated vaccine policy. This term purported to allow the employer to place an employee who declined to accept the vaccine on an unpaid leave. The policy exempted employees who could not comply due to religious or medical reasons. The court found these conditions reasonable and dismissed the constructive dismissal action.

These points should be noted:

1. The Defendant was not intending to terminate the employment for she could return to work at any time as long as she was vaccinated.
2. The Court took judicial notice both of the effect of the pandemic and the safety and utility of the vaccine.
3. The plaintiff was the only one of the 200 employees who refused. This alone was evidence of the objective basis that the policy was not unreasonable.
4. While it is extraordinary for an employer policy to affect one’s bodily integrity, given the extraordinary challenges of COVID, the policy was reasonable.

The plaintiff was not being forced to vaccinate, rather she was simply forced to make a difficult decision, vaccinate and work vs don’t vaccinate and don’t work.

This was the first civil case on this issue. There have been arbitral cases which were referenced in the decision.

COVID Leave Policy

A recent decision of the Alberta Court of Justice has considered the question of whether (1) the employer’s covid mandatory vaccination policy was reasonable and further (2) whether the company’s decision to place a recalcitrant employee on an unpaid leave of absence was a constructive dismissal. ¹

On the facts as set out below, the court’s response to these questions was in favour of the employer on both issues.

The salient facts were as follows:

1. The plaintiff had been employed as a server for 13 years;
2. In September of 2021, in the midst of the fourth wave of the pandemic, the employer initiated an mandatory vaccine policy;
3. The employee refused to comply, based on health concerns as to the safety of the vaccine;
4. The employee was then aware that the likely consequence of this position was an unpaid leave;
5. This result did follow;
6. A draft claim from counsel followed, by which the employee had alleged that she had been constructively dismissed.

The court did pay heed to the Supreme Court of Canada decision in Potter, noting that the “overriding question will be whether the suspension was reasonable and justified. To that end, the analysis of the policy document followed. [/efn_note] Potter v New Brunswick [/efn_note]

The first issue was then whether the employer’s policy was reasonable.

To that end, the court considered the first judicial decision in a non-union context which concluded that the analysis must look to this issue as the time the policy was implemented. ² This Parmar decision looked to the issues confronting the employer at such time, and noted the obligations of the employer at such time to consider the health and safety of its employees, members of the public, including its customers.

The court also relied upon a 2022 decision from Alberta. ³ The policy in this instance required vaccination and the wearing of a mask. The employee refused the mask and offered no evidence of a medical condition or disability to support this position. This was so, despite his assertion that this refusal was based on a medical condition. His unpaid leave followed, as did his unsuccessful claim of constructive termination. The court again saw the policy as reasonable. The missing medical evidence sealed the plaintiff’s fate.

The court in the immediate instance found that the employer’s policy was fair and reasonable, as it struck a fair balance between the competing interests of the employer’s need to keep its business open and commercially viable, its own obligations under health and safety legislation and on the other side, the plaintiff’s ability to follow her own personal beliefs and avoid termination of employment.

For these reasons, the claim for constructive dismissal failed.