On September 26, 2022, the first non-arbitral decision considering the complex matter of COVID-19 vaccination mandates in the workplace was released in British Columbia. Over the past few years, the topic of mandatory vaccine policies in the workplace have been an ongoing source of debate, concern, and controversy. Specifically, the question of enforceability of mandatory vaccine policies as well as reasonable consequences for employees who do not comply with such policies.
The enforceability of mandatory vaccine policies in the workplace have been considered by arbitrators in the case of unionized workplaces, however, Parmar v. Tribe Management Inc. is the first decision to provide guidance on how civil courts may consider vaccine policies in non-unionized workplaces.
This blog will provide a summary of the case as well as information about what this decision means for employers as well as employees who are challenging mandatory vaccine policies in their workplaces.
Facts of the Case
The Plaintiff, Ms. Deepak Parmar, worked for her previous employer (the “Company”) for nineteen (19) years, most recently in the role of Controller, Client Accounting (a senior managerial role).
In November 2021, the Company implemented a COVID-19 Vaccine Policy (the “Policy”) which required all employees to become fully vaccinated. At the same time, the Company began to require employees to return to the workplace on a hybrid basis.
Ms. Parmar expressed her objection to receiving the COVID-19 vaccine, however, she did not request accommodation based on an Ontario Human Rights Code protected ground (ie. religion or medical). The Company indicated that the Policy was non-negotiable and that Ms. Parmer would be placed on an unpaid leave of absence for three (3) months.
Ms. Parmer alleged that the unpaid leave of absence amounted to the constructive dismissal of her employment.
What was the Decision?
The Court found that Ms. Parmar’s unpaid leave did not amount to constructive dismissal. In coming to this decision, the Court considered the reasonableness of the Policy in order to determine whether an unpaid leave for failure to comply with the Policy was a substantial change to the essential terms of the employment.
Ultimately, the Court found that the Policy was reasonable in the circumstances for the following reasons:
- The Court accepted that the COVID-19 virus is highly transmissible and potentially deadly and that the COVID-19 vaccine was effective in “reducing the severity of symptoms and bad outcomes”;
- Introducing a mandatory vaccination policy was in line with the approach that many employers were taking at the time it was implemented, particularly considering the “extraordinary circumstances of the pandemic”;
- Employers have a statutory obligation to ensure the health and safety of its employees pursuant to s. 21 of the Workers Compensation Act, R.S.B.C. 2019, c. 1;
- The Policy took a balanced approach to protecting the health of its employees with the information that was available at that time;
- The Policy allowed employees to decide not to receive the COVID-19 vaccine without losing their employment by placing them on a leave of absence. Specifically, in this case, the leave of absence was initially not indefinite and allowed for reconsideration or revision to the Policy;
- Ms. Parmar was not replaced and continued to receive employee benefits during her leave and the Court believed that the Company had no intention to terminate her employment; and
- Ms. Parmar’s employment contract stated that she agreed to comply with workplace policies that may be introduced and amended from time to time.
Based on the above considerations, the Court found that a reasonable employee in a similar position would not have concluded that being placed on a temporary unpaid leave for failure to comply with a workplace policy constituted a substantial change to the terms of employment.
Further, the Court concluded that Ms. Parmar made the choice to resign from her employment and therefore was not constructively dismissed.
It is also worth noting that the Court found that it was reasonable for the Company to deny Ms. Parmar’s request to work solely from home as an alternative to being vaccinated. While Ms. Parmar had worked remotely during the pandemic; she was still required to attend the physical workplace from time-to-time due to the Company’s reliance on hard copy files. It remains to be seen whether the same would be reasonable for a workplace that has the capability for entirely remote work.
While this is a British Columbia decision, the Court’s reasoning is worth considering in Ontario as well as it may inform other decisions regarding vaccine policies in the workplace.
This case was found in favour of the employer and confirmed that mandatory vaccination policies may be reasonable in certain employment situations. Further, the decision highlights that courts may be willing to consider the uncertainty and social climate at the time of implementing vaccination policies as a factor when assessing whether the policy was/is reasonable.
However, the decision also indicates that assessments on vaccination policies and the impact on employees is highly fact-specific. There are a wide range of factors that may play into an ultimate decision on whether a policy was reasonable in the circumstances and further, whether the consequence of failing to comply with the policy was reasonable.
If you have any questions about constructive dismissal and vaccine policies in the workplace, contact your employment lawyers at Sultan Lawyers in Toronto to ensure your rights are protected and to have a knowledgeable professional on your side. Contact us online or at 416-214-5111 or email firstname.lastname@example.org for a consultation.
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