?Although arbitrators in Canada have considered whether an employer in a unionized workplace can place an employee on unpaid leave for failing to comply with its mandatory COVID-19 vaccination policy, the British Columbia Supreme Court in Parmar v. Tribe Management Inc., 2022 BCSC 1675, rendered the first civil court decision examining whether an employer can do so in a nonunionized workplace. The court rejected the employee’s argument that she had been constructively dismissed when, after she refused to comply with her employer’s policy, she was placed on an unpaid leave of absence. The court found the employer’s actions reasonable and that the employee’s losses were the result of her personal choice not to follow the policy.
Background
On Oct. 5, 2021, the employer, a condominium property manager, announced it was implementing a policy that would require all employees to become fully vaccinated by Nov. 24, 2021. The policy permitted medical and religious exemptions, and extra time for employees who were unable to meet the deadline.
The employee, an accounting professional, advised the employer that she would not comply with the policy but made no request for a medical or religious exemption. Among other things, she expressed concern about the vaccine’s hasty preparation, and fear of possible side effects and health issues. The employee asked if she could work exclusively from home, or on a hybrid basis with strict compliance to safety protocols and rapid testing on her days in the office. She argued the policy was unreasonable, as it made no exceptions for employees who could work entirely or almost entirely from home. The employer responded that there would be no exceptions to the policy.
On Nov. 25, 2021, the employer advised the employee that, due to her noncompliance with the policy, she would be put on an unpaid leave of absence from Dec. 1, 2021, to Feb. 28, 2022, but subsequently the employer made the leave indefinite. The employee alleged that by placing her on leave, the employer constructively dismissed her.
Decision
The court began its analysis by noting that the employee’s employment contract expressly provided that she would comply with the employer’s policies, as amended from time to time at the employer’s discretion. Accordingly, subject to the implied qualification that its policies would be reasonable and lawful, the employer was allowed to implement and amend workplace policies and the employee was obliged to comply with them.
The court determined that the reasonableness of the employer’s policy must be assessed based on “the state of knowledge about COVID-19 at the time it was implemented” and the “extraordinary circumstances of the pandemic in the winter of 2021 and January 2022,” as well as in the context of the employer’s obligation to protect the health and safety of its employees, clients and residents in the buildings it managed. The court noted that private-sector employers were strongly encouraged to implement policies that aligned with government vaccine mandates and directives. In addition, the court took judicial notice of COVID-19’s easy transmissibility and potential to cause death, and the ability of vaccines to reduce the severity of symptoms and bad outcomes.
The court stressed that in implementing the policy, the employer was required to balance the employee’s personal beliefs against the employer’s interest in ensuring that it protected the health and safety of its other employees, and ultimately the former had to yield to the latter. The court found the policy was a reasonable and lawful response to the uncertainty of the pandemic based on the information that was available to the employer; it reflected the prevailing approach at the time; it was not arbitrarily or selectively applied; it allowed employees to take a position against vaccination without losing their employment because they would be put on leave; the employee placed on leave could return to their employment if they became vaccinated; the policy reflected the employer’s statutory obligation under s. 21 of the province’s Workers Compensation Act to, among other things, ensure the health and safety of its workers; and, finally, the employer intended to review the policy as more became known about COVID-19, and if the pandemic subsided, the employee could return to work without discipline.
While the court acknowledged the employee’s right to hold her beliefs about the COVID-19 vaccination and to protect her bodily integrity, it did not believe this entitled her to impact other employees or, potentially, the thousands of residents in buildings for whom the employer provided property management services. The court stressed also that the employee’s beliefs did not entitle her to be excepted from the policy given her senior management position and the fact that she was the only employee who refused to comply with it. The court concluded that the employer’s policy was reasonable.
In its reasoning, the court emphasized that the employee chose to remain unvaccinated; it was her voluntary decision to resign; in refusing to comply with the policy she repudiated her employment contract; rather than accepting that repudiation the employer acted reasonably in putting the employee on an unpaid leave; and any losses suffered by the employee from being put on unpaid leave were the result of her personal choice not to follow the employer’s reasonable policy.
Although the court acknowledged that it is extraordinary for an employer to enact a workplace policy that impacts an employee’s bodily integrity, it concluded that to do so was reasonable “in the context of the extraordinary health challenges posed by the global COVID-19 pandemic.” Such policies do not force an employee to be vaccinated; rather they force an employee to choose “between getting vaccinated, and continuing to earn an income, or remaining unvaccinated, and losing their income,” and the employee made her choice.
Upon determining that the employee had failed to meet the test for constructive dismissal and that her claim would be dismissed, the court said: “A reasonable employee in [the employee’s] shoes would not have felt in all the circumstances that an unpaid leave as a consequence of failing to comply with the [policy] was a substantial alteration of an essential term of the employment contract. This is confirmed by the fact that all but one of her fellow employees complied with the [policy] and that most adult Canadians have since been vaccinated—many as a condition of continued employment.”
Bottom Line for Employers
The question whether a policy is reasonable may turn on the policy’s language and the facts of the case. With that in mind, nonunionized employers that implemented a policy may derive encouragement from the court’s findings in Tribe Management that the employer’s policy was reasonable, the employer had the right to place a noncompliant employee on unpaid leave, and, in doing so, the employer did not constructively dismiss the employee.
The court in Tribe Management adopted an attitude we have seen arbitrators express repeatedly; first, that an employee’s right to their personal beliefs is outweighed by an employer’s obligation to protect the health and safety of its other employees; and second, that a mandatory COVID-19 vaccination policy does not force an employee to become vaccinated, rather it forces them to choose between becoming vaccinated and continuing to receive their income, and refusing to become vaccinated and losing their income.
Rhonda B. Levy is knowledge management counsel with Littler in Toronto. Barry Kuretzky is an attorney with Littler in Toronto. © 2022 Littler. All rights reserved. Reposted with permission of Lexology.