Remember a little thing called the novel coronavirus? We came to know it as COVID-19 and, though it’s still out there, it’s fair to say that for most of us the anxiety of 2020-2021 is a thing of the past.
You may also remember that, when we were in the throes of the initial waves of the pandemic, I stated several times that we wouldn’t know – for 2-3 years at least - how B.C.’s judges and courts would deal with employers’ imposition of mandatory vaccination policies. One of the main unknowns related to employers imposing such policies and, when employees refused to comply, placing those people on indefinite (unpaid) leaves of absence.
Here we are, roughly two years later and (right on time) the B.C. Supreme Court has issued a decision on this subject. Happily, for employers, the Court has determined that imposing an indefinite and unpaid leave of absence did not amount to a constructive dismissal of the reluctant employee.
Parmar v. Tribe Management Inc.
Ms. Parmar was a senior manager within Tribe Management’s condominium management business. In late 2021, Tribe implemented a mandatory vaccination policy (“MVP”). Parmar, for personal reasons (unrelated to religion or disability) decided not to become vaccinated.
As a result, Parmar was placed on a 3-month (unpaid) leave of absence. Part way through the leave of absence, Parmar demanded to be returned to work or she would claim she had been constructively dismissed. Tribe stuck with its policy and, in January of 2022, Parmar resigned and commenced her court claim.
Parmar asserted that Tribe having placed her – unwillingly – on an unpaid leave of absence amounted to a constructive dismissal. The B.C. Supreme Court disagreed.
The Court largely focused on the reasonableness of the mandatory vaccination policy. In all respects, it seems the Court embraced the policy and accepted that “it was permitted by law”. In effect, the Court approached Parmar’s claim from the perspective that, since the policy was reasonable, the imposition of the leave of absence pursuant to the policy was also reasonable.
The Court stated…
[101] The assessment of the reasonableness of Tribe’s MVP must be considered based on the state of knowledge about COVID-19 at the time it was implemented. Approaches to managing the pandemic have evolved as more information became available and as the effectiveness of vaccines became known.
[102] The MVP must also be considered in light of Tribe’s obligation to protect the health and safety of its employees, its clients, and, by extension, the residents in the buildings to which it provided property management services.
The Court also took “judicial notice” that…
“COVID-19 is a potentially deadly virus that is easily transmissible. Symptoms of the virus may vary from person to person according to age, health, and other comorbidity factors. The virus can mutate. Asymptomatic carriers of the virus can infect others. There is no known immunity to contracting the virus and no verifiable evidence of natural immunity to contracting it, or a known mutation, a second or more time. … In addition, courts have taken judicial notice of the fact that vaccines work. While they do not prevent infection, reinfection, or transmission, they reduce the severity of symptoms and bad outcomes”
Focusing on Tribe’s mandatory vaccination policy, the Court had the following to say.
[144] Ms. Parmar is entitled to hold her beliefs about the COVID-19 vaccination. However, her entitlement to hold her beliefs and to protect her bodily integrity does not entitle her to impact other Tribe employees or, potentially, the thousands of residents in buildings to which Tribe provides property management services.
[145] The strength of her beliefs does not entitle her to take the position that an exception to the MVP should be made for her. This is particularly so in light of her senior management position and the fact that she was the only Tribe employee who refused to comply with the MVP.
[146] On the evidence, the Tribe MVP was carefully considered. It accounted for the interests of Tribe employees, their clients and their client’s employees, residents, and owners. It was reasonable.
[147] The MVP was not arbitrarily or selectively applied. The terms of the MVP, and the consequences of non-compliance, were known to Ms. Parmar. It was applied consistently to her and to the only other employee who failed to become vaccinated by the required date.
[148] While Ms. Parmar’s leave was unpaid and for an unspecified duration, she had the ability to end the leave and return to work for remuneration. In this regard, she was unlike the Executive Director in Potter.
[149] I understand that resuming her employment would have required Ms. Parmar to be vaccinated against COVID-19; she chose not to do so, and Tribe’s MVP respected that right. She was not dismissed or otherwise disciplined for non-compliance with the MVP. She was permitted to exercise her personal autonomy and follow her view. While she was not paid, she did not have any employment responsibilities during her leave.
The Court concluded,
“[Tribe] acted reasonably in putting her on an unpaid leave. She was not constructively dismissed from her position; she resigned. Any losses that she suffered from being put on unpaid leave were as a result of her personal choice not to follow Tribe’s reasonable MVP.”
And,
“I accept that it is extraordinary for an employer to enact a workplace policy that impacts an employee’s bodily integrity, but in the context of the extraordinary health challenges posed by the global COVID-19 pandemic, such policies are reasonable. They do not force an employee to be vaccinated. What they do force is a choice between getting vaccinated, and continuing to earn an income, or remaining unvaccinated, and losing their income. Ms. Parmar made her choice based on what appears to have been speculative information about potential risks.”
This decision appears to be a very solid endorsement of employers’ imposition of mandatory vaccination policies and of the imposition of extended (unpaid) leaves of absence when employees refused to cooperate. It doesn’t necessarily mean that every mandatory vaccination policy imposed during the COVID-19 pandemic will be upheld, and it also doesn’t necessarily mean that such policies imposed in the face of future health crises will find the support of the courts.
It does, however, mean that many B.C. employers who implemented such policies in the 2021 timeframe, and placed uncooperative employees on a leave of absence, can rest a little more easily.
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This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.