As you know from following our blog, we have been tracking the various adjudicative decisions – whether from the courts, tribunals or arbitrators – that have been rendered thus far during and related to the COVID-19 pandemic. Those decisions tend to fall into two categories: determinations regarding employer policies (masking and/or vaccination); and, constructive dismissal. Typically, we have seen the majority of the policy-related decisions arise in the context of unionized employers, while constructive dismissal issues are (almost) exclusively the realm of the non-unionized employer. However, in a merging of the two, the Alberta Court of Queen's Bench recently released a decision relating to a masking policy in the non-unionized context, specifically rejecting the claim of constructive dismissal.

In Benke v Loblaw Companies Limited, the plaintiff – a grocery store employee – was subject to a mask mandate for his time working in-store (he also worked partly remotely), and sought an exemption from the employer's Mask Policy based on non-specific notes from his physician. While the employer's Mask Policy contained exemptions and set out a process for employees to seek accommodation for their medical needs, the plaintiff's medical notes did not indicate – further, the plaintiff adduced no evidence at trial of – any medical condition or disability that did or would prevent him from wearing a mask.

The plaintiff was placed on an indefinite leave due to his refusal to wear a mask in stores, and he then claimed that this constituted a constructive dismissal and sought damages in lieu of reasonable notice.

The Court's reasoning started by dismissing the idea that the employer had any duty to accommodate in the circumstances. The employee did not show to his employer or provide any evidence to the court of any disability or condition that affected his ability to wear a mask. The Court therefore determined that there was no duty to accommodate and no need for the employer to explore any alternative work scenarios.

When then assessing the constructive dismissal element of the case, the Court relied on the well-established test for constructive dismissal, which requires the determination of 2 questions:

(1) whether the employer has imposed unilateral substantial changes that constitute a breach of the employment contract; and

(2) if a reasonable person in the employee's position would have felt that the breach substantially altered an essential term of the employment contract.

The Court addressed those questions specifically at paragraphs 60-61:

[60] Loblaw's imposition of the Mask Policy was not a substantial change and did not breach the employment agreement. Mr. Benke's job responsibilities did not change; the only thing that was different was that he had to wear a mask by reason of the Mask Bylaw and Mask Policy. The Mask Policy, though imposed by Loblaw, was not a substantial change and it was co-extensive with legal requirements imposed by municipalities (ie. the Mask Bylaw) and public health authorities. Similar mask policies prompted by the COVID-19 pandemic have been found to be reasonable by other decision-makers: see, for example, Dickson v Costco Wholesale Canada Ltd, 2022 AHRC 40 at para 29.

[61] The unpaid leave was a substantial change to Mr. Benke's employment relationship, but it was not a breach of the employment agreement. The essence of the employment bargain is that the employee will work and the employer will pay. Given that Mr. Benke was not working by reason of a voluntary choice that he made, a choice not to comply with the Mask Policy and Mask Bylaw, it was reasonable for Loblaw to not pay him. Though it is not necessary, I conclude that a reasonable employee in Mr. Benke's shoes would not have felt in the circumstances that an unpaid leave as a consequence of failing to abide by the Mask Policy and Mask Bylaw was a substantial alteration of an essential term of the employment contract.

[emphasis added]

Essentially, the Court said that the plaintiff placed himself in the position in which he found himself by his choice, and that his employer's actions were reasonable in the circumstances.

What this means for employers is a validation of reasonable masking policies in the face of COVID-19. While we currently do not have provincially-mandated masking requirements, many employers still have masking policies based on their specific circumstances and requirements. This decision supports the premise that a properly-drafted masking policy, and its implementation and enforcement, will not expose the employer to liability for constructive or wrongful dismissal. It is also reasonable to think that the reasoning applied here will apply in cases of challenges to vaccination policies as well, as we have seen in some arbitral decisions already.

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.