In the recent decision of Parmar v. Tribe Management Inc., 2022 BCSC 1675, the BC Supreme Court held that placing an employee on unpaid leave because they refused to get the COVID-19 vaccine did not amount to constructive dismissal. This case is one of the first civil court decisions in Canada that considered the validity of mandatory vaccination policies where employees that refused to be vaccinated were placed on unpaid leave.
By way of background, the employer Tribe Management implemented a mandatory vaccination policy in November, 2021. Ms. Parmar, the plaintiff employee, refused to be vaccinated due to personal preference (i.e. no medical or religious basis for refusing vaccination) and as a result was placed on a three month unpaid leave of absence as per the policy. The policy provided that it would be reviewed on an ongoing basis and Tribe asked Ms. Parmar to reconnect at the end of her three month leave to review the situation. Eventually, Ms. Parmar resigned claiming constructive dismissal.
Ms. Parmar's employment contract with Tribe expressly provided that she would comply with all workplace policies, as amended from time to time at Tribe's discretion. Tribe's right to implement policies was subject to the implied qualification that any such policy be reasonable and lawful. In this case, Ms. Parmar did not allege that the mandatory vaccination policy was unlawful. Instead, she argued that it was unreasonable to the extent it made no exception for employees who were able to work from home either entirely or almost entirely.
In finding that the policy was reasonable, the court considered the following: (i) Ms. Parmar's leave was for a set period of three months and was subject to review; (ii) Ms. Parmar was asked to return some Tribe property; (iii) Ms. Parmar was not replaced; (iv) Ms. Parmar continued to receive certain employee benefits while on leave; and (v) Tribe did not intend to terminate Ms. Parmar, as she was expected to fulfill a new role and was a valued employee.
The court stated that the issue was not whether the policy was perfect but whether it was a reasonable approach when implemented, given the uncertainties then presented by the pandemic and Tribe's obligation to protect the health and safety of its employees and clients. The court also took judicial notice that COVID-19 is a potentially deadly virus that is easily transmissible and the fact that vaccines work in reducing the severity of symptoms and negative outcomes if infected.
Ultimately, the court found that the policy was reasonable and dismissed the claim for constructive dismissal finding that Ms. Parmar made a choice to not comply on what appeared to be speculative information about potential risks.
Takeaways for Employers
While this decision is likely welcome news to employers who instituted mandatory vaccination policies during the COVID-19 pandemic, employers should note that the reasonableness of a vaccination policy is highly fact specific. The reasonableness of a policy, especially a policy that impacts an employee's bodily integrity, will depend on the state of knowledge at the time the policy was implemented and the specific language of the policy including any exemption or consequence provisions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.