Recently the British Columbia Supreme Court ruled on the reasonability of an unpaid leave of absence for failing to comply with a mandatory vaccination policy. In Parmar v. Tribe Management Inc., 2022 BCSC 1675, the employee, Ms. Parmar had reservations about vaccination and did not qualify for an exemption (medical or religious). In December 2021 the employer placed her on an unpaid leave of absence for approximately 3 months. Parmar did not agree and demanded reinstatement, or she would treat the unpaid leave as a constructive dismissal. The court found that the employer had acted reasonably in implementing the mandatory vaccination policy and placing her on an unpaid leave. Parmar’s constructive dismissal claim failed.
Public Health Prioritized
The main issue before Justice MacNaughton was whether an employer is entitled to place an employee on an unpaid leave of absence for failing to comply with a mandatory vaccination policy. The judge reviewed several labour arbitration decisions concerning vaccination policies to unpack the key factors a decision maker may consider. While these decisions were not binding on the court, the judge did view them to be helpful. These decisions placed importance on public safety and the evidence supporting the safety of the vaccine. Parmar’s personal concerns did not trump the safety of the many employees and the employer’s clients.
Reasonableness of the Unpaid Leave
The employer conducted an assessment on feasible alternatives to the mandatory vaccination policy, however, the policy was necessary because of the high level of integration and interaction between employees and the public. Parmar offered to take regular rapid tests, but these were not seen to be particularly reliable. There were also employees who had suffered severe reactions to contracting the virus, in addition to many who had compromised immune systems. The court noted the government’s encouragement for the private sector to align with government directives on this issue at that time as the risks associated with COVID-19 in October of 2021 were significant.
The employer did not want to terminate Parmar and in fact she was transitioning to a new position in November 2021. Instead, it chose to put her on an unpaid leave until new information became available to reassess or she was vaccinated. Ultimately health and safety issues at that time took precedence and, in the court’s view, the employer could not have been expected to take a selective approach for implementation of the mandatory vaccination policy. The decision to place her on leave was seen as a reasonable balance between safeguarding the health of staff and giving Parmar an opportunity to comply and/or return to work. Parmar understood the consequences of her views and her departure was considered by the court to be a voluntarily resignation, not a constructive dismissal.
Takeaway
Justice MacNaughton made it clear that cases like these are highly contextual and each must be assessed on their particular facts. The impact of COVID-19 at the time of the mandatory vaccination policy and the conditions in which it was created were reasonable, but this does not mean such a policy will always be reasonable. The judge pointed to arbitration cases where portions of mandatory vaccination policies were found to be unreasonable or there were workable alternatives to vaccination.
Employers will need to be mindful of adjusting their policies in accordance with public health information and changes to how their organisations operate. Employees should be aware that, absent a legitimate exemption, vaccination policies generally enjoy a considerable amount of leeway when balanced against the impacts of COVID-19.
If you have been placed on an unpaid leave of absence in connection with a vaccination policy reach out to the lawyers at JPak for advice on your rights and options. You may contact us at info@jpakemploymentlaw.com or here.
