Civil court success for mandatory COVID-19 vaccination policy

In what appears to be the first civil court decision on the topic of mandatory COVID-19 vaccination policies (MVPs) in the workplace, the British Columbia Superior Court of Justice ruled in favour of the employer and its MVP. While this decision does not provide carte blanche approval for all MVPs, it does provide helpful insight into how courts, including the Ontario courts, may approach such policies.

Parmar v. Tribe Management Inc., 2022 BCSC 1675

Facts:

The employer, Tribe Management Inc. (Tribe), provides condominium management services to strata boards and councils, including financial and information management, community/amenity management, and building maintenance. The employee, Ms. Parmar, worked for Tribe as an accounting professional. She was a valued employee, with no issues about her competency or reliability.

When the pandemic first hit in March 2020, Tribe was deemed an essential service and permitted to remain open. It implemented a range of measures to help prevent the spread of COVID-19, including encouraging remote work where possible, social distancing, reduced occupancy, among others.

During peak COVID-19 periods, from March until July 2020 and April until June 2021, Ms. Parmar worked partially from home. The evidence differed on whether she had to attend the office 1-3 times a week just to sign cheques, or about half the time.

In June 2021, Tribe re-opened its offices fully. Over that summer, a small group of Tribe staff considered whether to implement an MVP. In September, they opted to encourage staff to get vaccinated and ask them to disclose their vaccination status. Upon learning only 84% of staff were vaccinated, the group considered further measures. Ultimately, they settled on implementing a MVP in October 2021, which required all staff to be vaccinated by November 24, 2021 or be placed on an unpaid leave of absence.

Ms. Parmar refused to comply. She did not seek a medical or creed-based exemption, but explained she was worried about the potential health risks of the vaccine. She was not granted an exception and was placed on an unpaid leave of absence, effective December 1, 2021 to February 28, 2022.

After some discussion between Ms. Parmar, Tribe, and their respective counsel, in January 2022 Ms. Parmar advised Tribe that she resigned and that she considered herself constructively dismissed. She filed a claim against Tribe for wrongful dismissal damages that same day.

Outcome:

The judge held Ms. Parmar had not been constructively dismissed by being placed on the unpaid leave of absence due to her refusal to comply with the MVP. As a result, she had voluntarily resigned and had no entitlement to wrongful dismissal damages.

Analysis:

The judge's analysis focused on whether Tribe's MVP, including the provision that placed Ms. Parmar on an unpaid leave, was reasonable. In concluding that it was, the judge took account of the following:

• The state of the COVID-19 pandemic at the time of the MVP being implemented, including the various government mandates and that employers in the private sector were encouraged to implement policies that followed government directives.
• She took judicial notice of the fact COVID-19 is a potentially deadly virus that is easily transmissible and that vaccines work.
• Although not binding, she considered the arbitration decisions on the topic.
• The circumstances of the employer and employee, including:
  • It was clear the unpaid leave was not an excuse to terminate Ms. Parmar. To the contrary, it was for a period of three months and was subject to review, she continued to receive certain benefits, and the expectation was that she would return to work to fulfill a new role as a valued employee, among others.
  • Tribe's obligation to provide a safe workplace, as well as its need to account for its clients' safety and the health and safety of the residents at the properties it serviced.
  • It was clear Tribe intended to review the policy as information was gathered and more was learned about COVID-19. If the pandemic subsided, Ms. Parmar would have been able to return to productive work with Tribe. No other discipline was contemplated by the MVP.
  • The MVP was carefully considered, it accounted for a range of interests, including the interests of Tribe' employees, their clients and clients' employees, residents, and owners.
  • The MVP was not arbitrarily or selectively applied. The terms of the MVP and the consequences non-compliance were known to Ms. Parmar.
  • Tribe did not allow for fully remote work for any of its employees.

The judge emphasized 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 of 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."

Takeaways:

There are a couple important takeaways from this decision.

First, it confirms that the court will account for the extraordinary circumstances of the pandemic, the strong messaging from the government and public health authorities regarding vaccination against COVID-19, and the need to prioritize public health and safety.

However, it also confirms that the unique circumstances of the workplace are also an important consideration. Here, the fact the employer operated a business with a significant degree of public interaction, where fully remote work was not permitted, and that the employer clearly intended to recall the employee if the situation changed (i.e. if she vaccinated or if the pandemic situation improved). It is possible that if the workplace circumstances were different, a different conclusion might have been reached.

Moving forward, employers who have MVPs, or other COVID-19 measures, in place are encouraged to carefully review and revise their policies as the situation continues to change and develop and as their workplace grows or adjusts. The reasonableness, or lack of reasonableness, of a policy is time and context specific.

If you have any questions about your workplace policies, please reach out to a member of the Lee Workplace Law team. We would be happy to answer any questions you might have.