Mandatory Covid Vaccine Policy: Reasonable? Or Constructive Dismissal? BC Supreme Court Weighs In
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Parmar v. Tribe Management Inc., 2022 BCSC 1675 is the first case involving a non-Union environment and the enforceability of mandatory vaccine policies. It is also the first time the matter has been determined in the context of a civil claim.
A property management company placed an employee that refused to get vaccinated against COVID-19, mainly due to hesitation rather than being “anti-vax”, on unpaid leave for three months for failing to adhere to their mandatory vaccination policy.
The employee alleged constructive dismissal. She contended that the employer breached its contractual obligations, entitling her to treat the employment as having ended.
The employee worked in the accounting department with 19 years of experience in property management. Prior to vaccines becoming available to the general public in British Columbia, she was able to carry out the majority of her responsibilities remotely, and came into the office after hours to sign cheques and deal with other items that required in-person attention. Her duties also included managing people on the accounting team and for a brief period prior to the mandatory vaccination policy introduced by her employer, she returned to the office along with the other employees to perform her responsibilities. When she returned, it was agreed that she maintained, met, and in some cases exceeded, all safety protocols that were in place at the time. The employee was also slated to receive a promotion, which was announced to the company. The promotion involved less direct interaction with others, however, this was not related to the employee’s refusal to be vaccinated against COVID-19
There was no dispute as to the employee being able to fulfill all of her duties.
Similar to BC Hydro in BC Hydro and Power Authority v International Brotherhood of Electrical Workers, Local 258, 2022 CanLII 25764 (BC LA), the employer was recognized to provide essential services in BC, since the property management company supported the safe operations of residences. Several of the employer’s clients made inquiries as to whether the employer had, or was going to implement a mandatory vaccination policy. Some of the employer’s clients advised that they would require employees, who attended at their strata properties to perform their duties, to be vaccinated. The Court in this case commented that it did not appear workable for the only the employer’s property management employees to be vaccinated given the integration of those employees with administrative employees.
The company initially encouraged vaccination and disclosure of vaccination status which resulted in a vaccination rate of 84%. The mandatory vaccination policy was implemented to address the 16% since “the health and safety of our employees, clients, and communities is a priority.” The concerns of some immune compromised employees and the government implementing mandatory policies for its workers were also considerations factored into the employer’s decision to move forward with the mandatory vaccination policy.
When the employer introduced the mandatory vaccination policy, the employment agreements with their employees stated that the employees agreed to comply with company policies as implemented or amended from time to time.
When the employer introduced the mandatory vaccination policy, they did so by providing a notice to all of their employees. The mandatory vaccination policy applied to all employees and required them to become “fully vaccinated” by November 24, 2021. The mandatory vaccination policy provided for medical and religious exemptions, and allowed for extra time for those employees who were unable to meet the deadline. With the exception of two employees, including the employee in this case, all of the employer’s more than 200 employees complied.
The employee in this case voiced her concerns to her employer with respect to the vaccine, and made her objection to being vaccinated known. She was not an anti-vaxxer. Instead, she had reviewed literature and the news about the efficacy and potential risks of various vaccines, and observed several family members experience significant health complications following their first and second vaccine. The employee did not seek an exemption on religious or medical grounds. The employee offered several safety mitigation measures that she believed could allow her to continue working, including offering to work remotely and conduct a rapid test at her own expense if she had to attend at the office. The employer refused.
The employer accommodated the wishes of any employees who did not wish to get vaccines, including the employee in this case, by placing them on an unpaid leave of absence. The initial leave imposed was three months as the policy indicated it could be updated as conditions changed.
The employee was placed on unpaid leave from December 1, 2022 to February 28, 2022. Soon after the employee’s leave was implemented, the employee sent a demand that she return to work, failing which, she would allege constructive dismissal. The employer refused and maintained that the employee would remain on leave until such time as she was either vaccinated or the policy was repealed or relaxed. The employee’s leave was extended indefinitely. In response the employee resigned and alleged constructive dismissal. The employee arguably mitigated her damages by finding new work with higher compensation with another property management company within approximately three months.
The Issue
The primary legal issue argued was whether an employer may place an employee on an unpaid leave of absence for failing to comply with mandatory vaccine policy.
The Decision
The decision in this case was highly dependent on the circumstances facing Canada, and the rest of the world, in dealing with COVID-19 at the time the employer implemented the mandatory vaccine policy.
The Court accepted that the mandatory vaccination policy was permitted by law. At trial the employee argued was that it was lawful but unreasonable, because it didn’t provide for remote work.
The Court focused on whether the employer had bona fide business reasons, including safety reasons, for the mandatory vaccination policy and for placing the employee on an unpaid leave of absence for failing to comply with it.
The Court also focused on whether the employer’s approach was reasonable based on the knowledge about COVID-19 at the time the mandatory vaccination policy was implemented.
The Court found the mandatory vaccination policy to be reasonable based on what was known about COVID-19 and the extraordinary circumstances of the pandemic in the winter of 2021 and January 2022. The Court found that the mandatory vaccination policy reflected the prevailing approach at the time and struck an appropriate balance between the employer’s business interests, the rights of its employees to a safe work environment, its clients’ interests, and the interests of the residents in the properties it serviced. The mandatory vaccination policy was also found to satisfy the employer’s responsibility as a corporate citizen.
At the same time, the Court determined that the mandatory vaccination policy of the employer also ensured that if employees did not want to get the vaccine due to choice, they could do so without losing their employment by being placed on a leave of absence instead. The policy respected the employee’s right to remain unvaccinated.
The terms of the mandatory vaccination policy and the consequences of non-compliance were known to the employee. It was applied consistently to the employee and the only other employee who chose not to become vaccinated by the required date. The Court found that the employee in this case opted to resign, and in the circumstances of this case, that was a voluntary decision. It held that any losses incurred by the employee from being placed on an unpaid leave were the result of the employee’s personal choice not to follow the employer’s reasonable mandatory vaccine policy.
For more information about this post, or if you have any questions arising from this decision, email Employment & Human Rights Lawyer, Salona Nainaar, at snainaar@rbs.ca or call at 604.661.9243.
