Unpaid leave of absence for refusal to comply with vaccination policy not constructive dismissal

7 minute read
06 October 2022


The Supreme Court of British Columbia is the first court in Canada to address mandatory vaccinations in the context of employment policies. In Parmar v. Tribe Management Inc., 2022 BCSC 1675 ("Parmar"), a senior finance manager at Tribe Management Inc. ("Tribe"), a property management firm, claimed she had been constructively dismissed from her employment. Tribe had placed the employee on an unpaid leave of absence as a result of her refusal to comply with its mandatory vaccination policy (the "Policy").

On Oct. 5, 2021, Tribe introduced the Policy, which required all employees to become fully vaccinated by Nov. 24, 2021. The Policy provided exemptions for employees who did not wish to become vaccinated for human rights-protected reasons, such as religious beliefs or disability and/or medical reasons. However, this particular employee did not seek an exemption on these grounds.

The employee was not an "anti-vaxxer," but had concerns about the vaccine. She was concerned that the vaccines were prepared and distributed hastily and that there was limited data about the vaccines' long-term efficacy and potential negative health implications for certain individuals.

In response to her refusal to become vaccinated, Tribe placed the employee on a three-month unpaid leave of absence. The leave of absence was subsequently extended and ultimately became indefinite. At no time did Tribe discipline the employee, nor did Tribe dismiss the employee. Moreover, Tribe did not hire a replacement employee for the employee's position and maintained that the employee could return to work upon becoming vaccinated.

The employee proposed alternatives to compliance with the Policy, such as working exclusively from home, a hybrid arrangement with strictly controlled in-person office visits to perform certain duties, compliance with other safety protocols, and rapid COVID-19 testing, at her own expense, if she needed to attend at the office. Tribe advised there would be no exceptions to the Policy. The employee resigned and alleged she had been constructively dismissed.

The Court dismissed the employee's claim for constructive dismissal. In its reasoning, the Court applied the "somewhat analogous" case of Benke v. Loblaw Companies Limited, 2022 ABQB 461. In that case, an employer placed an employee on unpaid leave as a result of his unwillingness to comply with the mandatory masking policy. Absent a legitimate medical justification for the employee's refusal, the Alberta Court of Queen's Bench (as it then was) dismissed the claim for constructive dismissal.

In Parmar, the employee's non-compliance was not based on a medical or religious exemption as defined in the Policy. Her refusal to get vaccinated was due to personal beliefs. As a result, the Court determined the employee had not been constructively dismissed from her position. In reaching this conclusion, the Court:  

  • Took judicial notice of the dangers of COVID-19 as well as the efficacy of the vaccine to "reduce the severity of symptoms and bad outcomes;"
  • Noted that the employee's employment contract expressly contemplated her adherence to workplace policies; and
  • Affirmed that Tribe's introduction of the mandatory vaccination policy "reflected the prevailing approach at the time," and that it "struck an appropriate balance" between Tribe's business interests, the employees' right to a safe workplace environment, clients' interests, and the interests of residents in the properties Tribe serviced.

Notably, not all mandatory vaccination policies have struck such an "appropriate balance" at the board or tribunal level. There are arbitral decisions that have found mandatory vaccination policies to be unreasonable in other contexts. As the Court in Parmar highlights, decisions from these adjudication bodies are "helpful but not binding."

The Court made a final comment on the employee's choice to comply with a workplace policy or be subject to the consequences for non-compliance. At paragraph 154, the Court stated:

Finally, I accept that it is extraordinary for an employer to enact a workplace policy that impacts an employee's bodily integrity, but in the context of the extraordinary health challenges posed by the global COVID-19 pandemic, such policies are reasonable. They do not force an employee to be vaccinated. What they do force is a choice between getting vaccinated, and continuing to earn an income, or remaining unvaccinated and losing their income.

Takeaways for employers

As the first Court decision to address mandatory vaccination policies in the workplace, Parmar is instructive for employers and employees across Canada. This case illustrates the Court's balancing of the employer's right to implement workplace policies, especially for safety, and employees' right to assert non-compliance due to personal beliefs or bodily integrity.

Whether courts in other jurisdictions will apply the same reasoning and reach the same outcome in Parmar is untested. At the very least, a review of available decisions suggests determining the reasonableness of a mandatory vaccination policy will be a highly fact-specific exercise. A court will consider factors including the nature of an employee's job, whether providing alternatives to a policy is realistic, whether or how discipline was administered for non-compliance, the language of the applicable workplace policy, and the available scientific or expert information at the material time. Termination of employment for an employee's non-compliance with a mandatory vaccination policy remains a live issue to be addressed by the courts.

Still, Parmar is a welcome decision for Canadian employers, who introduced and implemented mandatory vaccination policies based on public health guidance and the best available information related to protecting its employees and the community against COVID-19.

If you would like to discuss this article further or have any questions, please contact the authors or a member of the Employment, Labour & Equalities Group.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.