The rights of employers to institute mandatory vaccination policies in response to the COVID-19 pandemic have been clarified in the recent decision of Parmar v. Tribe Management Inc., 2022 BCSC 1675. In the first case to address the issue, the BC Supreme Court held that an employer was within its rights to place an employee on an indefinite, unpaid leave of absence when she refused to comply with its vaccine policy. The Court held that the policy, while not required by law, was both lawful and reasonable, and the indefinite unpaid leave of absence did not amount to her constructive dismissal.
Background
Ms. Parmar was a long-term employee of the defendant condominium management company, Tribe Management Inc. (“Tribe”).
Prior to the widespread availability of COVID-19 vaccines, Tribe addressed the challenges of the pandemic through a combination of social distancing, reduced employee interactions, and remote working arrangements. However, as vaccines became widely available, Tribe responded to the compelling public health information available and implemented a policy requiring all employees to provide proof of vaccination (subject to bona fide religious and medical exemptions). Ms. Parmar refused to comply and was placed on an involuntary, unpaid leave of absence effective December 1, 2021. On January 26, 2022, she tendered her resignation and commenced litigation wherein she alleged that she had been constructively dismissed.
Analysis
The outcome at trial was uncertain. In different circumstances, Canadian Courts have held that an unpaid leave of absence is tantamount to a dismissal and ordered that the employee receive compensation. However, the pandemic was recognized as an extraordinary event which justified an extraordinary response. Drawing from the guidance of public health authorities, statements by the Federal government, and Canadian arbitral jurisprudence, the Court found that the policy and the decision to place Ms. Parmar on unpaid leave were reasonable responses to the circumstances of the pandemic. Notably, the Court took judicial notice of the fact that vaccines are effective in reducing symptoms and poor health outcomes associated with COVID-19 infection.
The Court provided the following commentary of broad application to mandatory vaccine policies of Canadian employers:
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.
In the result, the Court determined that Ms. Parmar had chosen to remain unvaccinated and resigned voluntarily. Her constructive dismissal claim was accordingly dismissed.
Takeaways for Employers and Employees
This decision will have implications for employers and employees across Canada as it represents the first occasion on which the issues were addressed. It ought to result in the resolution of many disputes presently pending before our courts which touch on the rights of employers to implement workplace safety measures and the rights of employees to refuse compliance on the basis of “principle” or “bodily integrity”. Canadian employers can take comfort in knowing that their choice to follow the directives of public health officials and to rely on the best available information will not give rise to liability.
If you require further assistance, please contact Lanny Robinson or Marshall Mackoff.
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