The question of how employers should address employees who choose not to vaccinate, and whether mandatory COVID-19 vaccination policies are reasonable in the workplace, was recently addressed by the British Columbia Supreme Court in Parmar v. Tribe Management Inc., 2022 BCSC 1675 (Parmar). In short, while the analysis of what constitutes a constructive dismissal will always be “intensely” fact specific, those that fail to comply with law employer policies – including mandatory vaccination policies – will need to be prepared to face the consequences of their choices.
Parmar v Tribe Management Inc.
The question in Parmar was whether an employer could place its employee on an unpaid leave of absence for failing to follow a mandatory workplace vaccination policy or whether this amounted to constructive dismissal. At issue was whether the leave was reasonable and justified based on the facts and the state of knowledge about COVID-19 when the policy was implemented.
Tribe Management Inc., a strata management company, implemented a mandatory vaccination policy with medical and religious exemptions available for eligible employees. The plaintiff, Ms. Parmar, did not assert that she qualified for such an exemption when she refused to get vaccinated. The defendant employer subsequently placed the plaintiff on unpaid leave for three months, subject to a reassessment at the end of that period. Ms. Parmar sued the employer for constructive dismissal.
In considering the reasonableness of the leave, Justice MacNaughton of the British Columbia Supreme Court drew parallels to an Alberta case from earlier this year. In this case, the plaintiff’s constructive dismissal case was dismissed after he was found to have resigned when he took another job after being placed on an unpaid leave of absence for refusing to comply with the employer’s mandatory mask policy.
The employment bargain struck between employer and employee is that the employee will work and the employer will pay. Analogous to an employee that chooses not to wear a mask, an employee that does not vaccinate chooses to do so. By choosing not to vaccinate, an employee effectively chooses not to work.
The consequence of a mandatory vaccination policy is not to force an employee to become vaccinated; rather, it presses the employee to decide whether to get vaccinated and continue earning an income or remain unvaccinated and lose that income. Refusal to comply constitutes the employee’s repudiation of their employment contract.
Context is key
Context factored heavily in this decision. When the mandatory vaccination policy was imposed, the prevailing laws required proof of vaccination at most public events, health sector and public service employees were required to be vaccinated, and vaccinations were readily available to the public. The employer, Tribe Management Inc., was considered an “essential service” by ensuring the safe operations of residences. The Court found that the company took significant steps to be informed about the pandemic and its workers’ health and vaccination status. The Court took judicial notice (as have other cases) that Covid-19 vaccinations are safe and effective, meaning Tribe Management Inc. did not have to consult an expert to implement its policy.
The employer was required to balance Ms. Parmar’s personal beliefs against its interests to protect the health and safety of all employees, its clients’ interests, and the interests of the people it services. The judge concluded that with what was known about the coronavirus and vaccinations at the time, imposing the policy was reasonable and also consistent with the company’s statutory obligation to provide a safe workplace under the British Columbia Worker’s Compensation Act.
It is also notable that while Ms. Parmar proposed safe alternatives to vaccination, such as working remotely, submitting to rapid testing at her cost, or adhering to strictly-controlled in-person office visits, the company was permitted to refuse same.
The policy imposed respected Ms. Parmar’s personal choices. Rather than dismissing or disciplining her, she was placed on a three-month leave of absence. The company did not fill her position and was prepared to extend her leave of absence if necessary or reinstate her if her vaccination status changed. This policy was applied consistently and to all workers.
Conclusion: Imposing unpaid leaves of absence may not amount to constructive dismissal
This decision illustrates that taking steps to enforce a lawful workplace policy, such as placing employees on unpaid leaves of absence for refusing to vaccinate, likely does not ground an action in constructive dismissal. However, context is key. Courts will look to the surrounding circumstances, including the duration of the leave, whether the employee on leave can return to their position, the reasonableness of the leave itself, and the consistency with which the policy is implemented. While employees are entitled to their personal beliefs, they cannot simply refuse to comply.