COVID-19

B.C. Supreme Court: Unpaid Leave for Violation of Mandatory Vaccination Policy Is Not Termination of Employment 

Parmar v. Tribe Management Inc. 2022 BCSC 1675, released on September 26, 2022, is the first civil court decision to consider whether unpaid leaves of absence for noncompliance with an employer’s Mandatory Vaccination Policy (“MVP”) can be considered constructive dismissal.

Deepak Parmar, an accounting professional with 19 years of experience in property management, alleged that she was constructively dismissed from her employment with Tribe Management Inc. (“Tribe”) when she was placed on an unpaid leave of absence after refusing to comply with Tribe’s MVP.

Although Tribe placed Ms. Parmar on a three month unpaid leave of absence for her failure to comply with the MVP, it was Tribe’s sincere hope that she would return to work.  According to Tribe she was an excellent employee and an integral part of Tribe’s business.

Ms. Parmar did not have (or claim to have) any medical contraindication or religious belief restricting her from becoming vaccinated for Covid-19.

At trial, Ms. Parmar, who does not describe herself as an “anti-vaxxer”, stated that she was concerned that the vaccines were prepared and distributed hastily and that there was limited data about their long-term efficacy and potential negative health implications for certain individuals. She expressed that she was hesitant to get vaccinated for fear of negative side effects.  She also referenced her family’s health history including heart issues on her father’s side and autoimmune issues on her mother’s side, her mother’s negative experiences with doctors and specialists providing inaccurate information, and the negative health impacts that her family experienced as a result of vaccinations.  The Court, while acknowledging Ms. Parmar’s right to her own opinion regarding the vaccines, took judicial notice of the efficacy of vaccines at reducing the severity of symptoms and bad outcomes noting as well that there was no evidence on the record to the connection between some of Mr. Parmar’s concerns and vaccination.

In response to the MVP, Ms. Parmar proposed various alternatives to vaccination, including that she could work exclusively from home, or in a hybrid arrangement with strictly-controlled in-person office visits, or that “she would continue to strictly adhere to other safety protocols” and that she was “willing to undergo rapid testing on each day she was required to attend at the office.”  In response, Ms. Parmar was advised by Tribe that there would be no exceptions to the MVP. 

Instead of being dismissed or disciplined, Ms. Parmar was initially placed on a three month leave of absence, beginning on December 1, 2022.  Ms. Parmar’s leave was subsequently extended (and ultimately made indefinite once Ms. Parmar’s lawyer got involved) pending a change in her vaccination status.

Ms. Parmar argued that the MVP was unreasonable to the extent that it did not make an exception for employees who were able to work from home either entirely or almost entirely.  The Court disagreed.  It found that Tribe’s MVP was a reasonable and lawful response to the uncertainty created by the COVID-19 pandemic based on the information that was then available to it.  The leave, the Court explained, did not serve as a termination of her employment, instead it was Ms. Parmar who had resigned by taking the position that she had been constructively dismissed.  Ms. Parmar’s personal beliefs and right to protect her bodily integrity did not entitle her to impact other Tribe employee’s, or potentially the residents that they served.

In so finding, the Court considered several aspects of Ms. Parmar’s leave to be important, including that it was for a period of three months and was subject to review, that Ms. Parmar was not replaced that she continued to receive certain employee benefits and Tribe did not intend to terminate her employment, as she was expected to fulfill a new role and was a valued employee.  The issue, the Court reasoned, was not whether the MVP was a perfect policy, but whether it was a reasonable approach when implemented, given the uncertainties then presented by the pandemic, and with reference to Ms. Parmar’s specific employment. 

Putting aside the importance of the specific circumstances of any case, the comments of the Court in this case are likely to be highly useful to employers defending MVPs and/or decisions to place employees on leave (or even terminate) as a result of refusals to comply with them.  For example:

  • the Court took judicial notice of the dangers of the virus as well as the efficacy of the vaccine to “reduce the severity of symptoms and bad outcomes”;
  • the Court recognized that the MVP reflected Tribe’s 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 (an obligation borne in a similar form by employees as well);
  • the Court noted that Ms. Parmar’ s contract of employment expressly contemplated her adherence to workplace policies, rendering the question at issue whether the MVP was a reasonable exercise of Tribe’s rights;
  • the Court noted that the “extraordinary circumstances of the pandemic in the winter of 2021 and January 2022” made it reasonable for Tribe to introduce the MVP, itself an “extraordinary measure” given its impact on employees’ bodily integrity; and
  • the Court accepted that the introduction of the MVP “reflected the prevailing approach at the time”, that it “struck an appropriate balance” between Tribe’s business interests and the health and safety of its employees (among others) and that it satisfied Tribe’s responsibility as a “corporate citizen.”

The issue of whether an unpaid leave for failure to comply with an MVP offends terms of employment has previously been grappled with by arbitrators in the union context.  However, this decision is the first of its kind to consider an allegation of constructive dismissal arising from the implementation of an MVP in a non-union work environment.  While the finding represents welcome news for employers who instituted MVPs during the COVID-19 pandemic, it should be noted that the reasonableness of each MVP is highly fact specific and will depend on numerous factors, including the specific language of the MVP itself.

If you have any questions about this topic, or any questions relating to workplace law generally, please do not hesitate to contact a Mathews Dinsdale lawyer.

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