September marked another step into the post-COVID world with the Canadian government scrapping its mandatory proof of vaccination policy for travelers entering the country.
While this step has obvious societal and economic impacts, it also signals potential employment law implications to businesses and their employees as courts start to review employers’ decisions to institute (and in some cases continue) mandatory vaccination policies (MVPs).
The Emerging Post-COVID World
Throughout the pandemic, courts and other judicial bodies in Canada have largely upheld the various public health orders and emergency acts implemented by the government to limit the virus’ spread. Similarly, jurisprudence so far has largely supported decisions made by employers in the interests of employees and public safety, particularly where these decisions were based on the public health guidance available at the time.
When it comes to MVPs, labour arbitrators across Canada have been addressing such matters for some time in the unionized context. Generally speaking, arbitrators have determined that MVPs were reasonable measures for employers that were deemed essential services during the height of the pandemic – for example, in BC Hydro and Power Authority v International Brotherhood of Electrical Workers, Local 258. Arbitrators have, however, expressed reservations about the reasonableness of certain MVPs such as those which permit discipline or discharge for employees’ failure to comply, or which apply to employees who generally perform work from home or outside.
In the face of these arbitral decisions, the non-unionized employment world has anxiously awaited what the courts would say about similar issues. Given the relative slowness of the civil litigation process (as compared to grievance arbitration for unionized employees), courts have only recently began to hear and decide upon cases involving MVPs and other pandemic-related employer decisions. These cases arise primarily from situations where an employer’s MVP led to mandatory unpaid leaves of absence, lay-offs and terminations.
One such case is the recently released decision of Parmar v Tribe Management, 2022 BCSC 1675—the first civil court decision to consider non-compliance with an MVP in a dismissal context. In this BC Supreme Court case, Ms. Parmar alleged she was constructively dismissed from her employment at Tribe Management, after being placed on an unpaid three month leave for refusing to comply with the company’s MVP.
Not citing a medical or religious reason for non-compliance, Ms. Parmar proposed alternatives to vaccination, such as working from home and taking rapid tests when she attending the office. However, the company declined these options and did not offer her an exception. Ms. Parmar failed to comply with the MVP, was placed on unpaid leave, and chose to resign and claim constructive dismissal.
The Court dismissed Ms. Parmar’s claim and found that the MVP was reasonable in its substance and implementation, striking a fair balance between the various competing interests at play. It held that Ms. Parmar’s refusal to comply constituted a repudiation of her employment contract and the company was entitled to place her on an unpaid leave of absence pursuant to its policy. Unsurprisingly, the Court referred extensively to the line of arbitral cases mentioned above in rendering its decision.
This decision is significant in finding that an employer will be able to rely on a reasonably drafted and implemented MVP in the face of employees alleging constructive dismissal due to their refusal to comply. Moreover, the decision suggests that BC courts will uphold non-unionized employer policies that were adopted during the pandemic in accordance with government and public health guidance.
In BC, whether an employer’s MVP was/is reasonable will depend on the facts of each case, including the nature of the business and the consequences to the employee for failing to comply. This means decision outcomes on MVPs may be different for different employers.
However, one province has taken a different path: in January 2022, amendments to the Saskatchewan Employment Act came into force that protects employers from all claims made by employees in connection with COVID-19 measures implemented in the work place, as long as those measures – including MVPs – were made in a good faith effort to act in accordance with public health regulations. No action or proceeding may be commenced against an employer who acted in good faith, and any action commenced before the legislation came into force are deemed dismissed. So far, no other provinces have followed suit.
As scientific evidence continues to be amassed about the COVID-19 virus, vaccines, and treatments, and the courts hear cases pertaining to MVPs, employers will need to revisit those policies to stay up-to-date. With the introduction of effective vaccines, many government directives are being scaled back—for the time being, at least—and employers must re-evaluate whether the measures they put in place at an earlier time in the pandemic are still required.
At the centre of this evaluation should be the question of ‘reasonableness’ within the larger context of current public health orders and government policies. Employers should keep in mind the caveats raised by the court in Parmar and the evolving state of public health recommendations in assessing what actions will be deemed reasonable in the workplace in the name of health and safety at this point in the pandemic.
This assessment should of course be made in consultation with appropriate legal counsel, who will be apprised of any changes to the law. Given the novel nature of these issues, and the wide variation of employer responses to the pandemic, the law may develop in unexpected ways in the future.
While this article offers a high-level understanding of some legal implications around MVPs, it is shouldn’t be considered legal advice. For more information or advice about MVPs, wrongful dismissal claims or other employment matters, please contact Leslie Whittaker or Matthew E. McCarthy of Boughton Law’s employment group.