After COVID-19 vaccines became widely available to the public, many employers in Canada sought to implement vaccination policies for their employees. If an employee did not comply with the policy and did not have a valid medical exemption, they could face significant consequences, including the imposition of unpaid leave. However, many of these policies, and the rights of employers, have since been challenged.

A recent decision from the Supreme Court of British Columbia dealt with an employee who commenced a wrongful dismissal action against her employer after being placed on unpaid leave due to non-compliance with the employer’s vaccination policy.

First Court Decision of Non-Unionized Employee Placed on Unpaid Leave for Failure to Comply with COVID-19 Vaccination Policy

The case of Parmar v. Tribe Management Inc. is the first time the courts have considered whether a non-unionized employee can be placed on an unpaid leave of absence for their failure to comply with an employer’s mandatory vaccination policy.

The employee worked as an accounting professional with Gateway Property Management, which company was acquired by Tribe Management Inc. in 2021. The employee signed a new employment contract with Tribe in July 2021, which required her to comply with all company policies “amended from time to time by Tribe in its discretion.” The contract further stated that if the employee was dismissed by Tribe without cause, she would be entitled to notice (or pay in lieu thereof) of 12 months’ base salary, plus one additional month of base salary for every completed year of employment, to a maximum of 24 months.

Employer Implemented COVID-19 Policy in Response to Public Health Information

In September 2021, Tribe learned that 35 out of 220 employees had not yet been vaccinated. Based on existing public health information, the employer felt this number was unacceptably high. The employer’s Vice President of Human Resources circulated a policy to all employees via email on October 5, 2021, requiring all employees, subject to medical or religious exemptions, to become “fully vaccinated” by November 24, 2021. Only the employee and one of her colleagues failed to comply.

The employee’s objection to the vaccination was based on her review of the literature and her observance of health complications in family members after receiving their vaccines. The employee clarified this reasoning to her employer and suggested alternative accommodations. However, the employer advised that there would be no exceptions to the policy.

Employee Claimed Constructive Dismissal Arising from Unpaid Leave

On November 25, 2021, the employer told the employee she would be on unpaid leave from December 1, 2021 to February 28, 2022. A few weeks into her leave, the employee requested to return to work; failing which, she would commence a claim for constructive dismissal. The employer declined and placed the employee on unpaid leave indefinitely until she complied with the policy. The employee subsequently resigned and filed her claim.

The plaintiff employee claimed she was placed on an unpaid leave of absence due to non-compliance with the policy. She alleged the employer breached its contractual obligations, therefore entitling her to consider the employment relationship as having been constructively terminated. The plaintiff further claimed that the policy was unreasonable as it did not make an exception for employees working almost entirely from home

The employer claimed that the policy was a reasonable response to the uncertainties of the COVID-19 pandemic and was authorized under the employment contract’s terms. The employer argued that the employee chose not to comply with the policy and, as a result, any consequences to the employee were foreseeable. The employer further claimed that any losses to the employee, were caused by the employee’s failure to mitigate her losses by choosing not to get vaccinated. The employer told the employee that she could have returned to her job anytime if she received the vaccination.

B.C. Supreme Court Finds Employee Not Constructively Dismissed

The Court found that the vaccination policy was reasonable and lawful. The Court also took judicial notice of the transmissibility and potential effects of COVID-19. After a consideration of relevant arbitration cases, it held that the employer’s decision to place the employee on unpaid leave was reasonable in the unprecedented times during which the policy was implemented.

Consequently, Justice MacNaughton dismissed the employee’s claim, finding there was no constructive dismissal as it was the employee’s choice not to get vaccinated.

Ontario Arbitrator Upholds Mandatory Vaccination Policy Despite Government Directive Being Lifted

Meanwhile in Ontario, Arbitrators have been asked to consider similar fact scenarios involving the employer’s implementation of mandatory vaccination policies. In Maple Leaf Foods Inc., Brantford Facility v UFCW, Local 175, an Arbitrator upheld a mandatory vaccination policy requiring all employees and contractors to be fully vaccinated by March 31, 2022, barring exemptions per any human rights grounds. The Arbitrator found the policy reasonable and enforceable and noted that other health and safety measures were insufficient to protect the workplace absent the vaccination policy. Further, the policy was consistent with the collective agreement and remained reasonable in light of recent changes to COVID guidelines adopted by the government and the employer.

In August 2022, the Arbitrator in the case of Regional Municipality of York v Canadian Union of Public Employees, Local 905 (Long Term Care Unit) upheld a mandatory vaccination policy in a long-term home care facility that required employees to have three doses of an approved COVID-19 vaccination. The employer implemented their policy after the Government of Ontario directed that all long-term care home workers must have three doses of the COVID vaccination. The policy was upheld despite the Government of Ontario revoking the directive in March 2022.

When mandatory vaccination policies began to roll out during the height of the COVID-19 pandemic, the Ontario Human Rights Commission indicated that mandates are “generally permissible under the Human Rights Code as long as protections are put in place to make sure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated.” Workplace mandates must also comply with privacy laws.

Reopening Ontario

Under the Plan to Safely Reopen Ontario, mandatory vaccination policy requirements have mostly been revoked. However, when faced with policy cases, decision-makers will review any applicable employment or collective agreements, the employer’s statutory obligations, the nature of the workplace, and the health information available when the policy was implemented.

Employers must take every reasonable precaution to protect the health and safety of their employees under Ontario’s employment and labour laws. In doing so, they can maintain some of the precautions put in place to address COVID-19 but must be wary that precautionary measures taken in 2021 may not be regarded as such in 2022 and beyond. Therefore, employers should understand that these cases are fact-specific, and additional considerations may be relevant when determining the reasonableness of policies and enforcement measures in the future.

Willis Business Law Provides Advises Employers on Wrongful Dismissal Claims and Vaccination Policies

The knowledgeable employment lawyers at Willis Business Law have extensive experience guiding employers through various employment law and labour law matters, including wrongful dismissal claims and navigating workplace policies. Our lawyers remain current on the latest legal cases to help ensure that employers understand their rights concerning workplace policies to ensure they effectively mitigate risk and litigation.

Willis Business Law is located in Windsor and serves clients throughout Windsor-Essex and surrounding areas. If you have questions or concerns regarding workplace policy implementation or are defending a termination claim, contact us online or call our office at 519-945-5470 to speak with a member of our employment law team.

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