Are mask and vaccine mandates constructive dismissals?

Were companies allowed to put employees on unpaid leaves for refusing to comply with a mask or vaccine mandate or were such leaves actually constructive dismissals?

This question has been asked by many employers, employees and employment lawyers throughout the pandemic.

While several labour arbitration decisions have considered mask and vaccine mandates, a recent decision out of Alberta appears to be the first judgment by a Canadian court to address this issue.

Benke v Loblaw Companies Limited (2022 ABQB 461), revolved around the decision by a Loblaw employee to refuse to comply with the company’s mask mandate. During the early stages of the pandemic, the employee’s doctor provided him with a letter stating that he did not have to wear a mask because of an unspecified medical condition. But the doctor refused to provide another exemption letter after provincial guidance on exemptions changed and the City of Calgary instituted a mask by-law.

Loblaw placed the employee on an indefinite unpaid leave of absence because of his refusal to comply with the mask mandate without a valid exemption. Loblaw’s position was that it had no duty to accommodate the employee or pay him for not working in those circumstances.

In response, the employee brought a lawsuit claiming that Loblaw had constructively dismissed him by placing him on the unpaid leave.

In his decision, Justice Colin Feasby ruled that the employee did not show that he had a disability or medical condition that affected his ability to wear a mask and thus ruled that he was not eligible to an exemption from the policy.

The judge agreed with Loblaw’s position and ruled that the employee’s inability to work resulted from a voluntary choice he made, not because of his employer’s actions. Because there was no medical (or religious) justification for a mask exemption, Loblaw did not need to pay the employee and he was not constructively dismissed.

In making that finding, Justice Feasby looked at the legal test for constructive dismissal which requires:

(1) an employer to have unilaterally imposed a substantial change to the employment terms that breached the employment contract; and

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

The judge found that introducing a mask policy was not a substantial change to the employment agreement, did not breach the agreement and was not a constructive dismissal. The key factor supporting this finding was that the employee’s responsibilities did not change. Rather, the only thing different was that he had to wear a mask because of the policy (and the city’s by-law). The judge found that the policy was not a substantial change to the employee’s role.

While the unpaid leave was a significant change to the employee’s employment relationship, it did not breach the employment agreement. The employee was not working because he chose not to comply with the mask policy. Therefore, it was reasonable for Loblaw to decide not to pay him.

The judge also found that a reasonable employee in this situation would not find an unpaid leave to be a substantial change to a term of the employment contract.

The judge went further to say that, by refusing to comply with the mask mandate, the employee effectively terminated the employment contract and Loblaw could have treated him like an employee who quit or abandoned their position.

VACCINE MANDATES

Although the case did not explicitly deal with vaccine mandates, the reasoning in the case seems equally applicable to employees who refused to comply with them. In those situations, employees made the choice not to comply with the vaccine mandates.

Like mask policies, the imposition of vaccine mandates by employers did not substantially change employees’ work responsibilities. The only thing that changed about most employees’ roles was that they had to get a vaccination (as over 90% of eligible people in Ontario have done) in order to remain eligible to work.

Thus, courts are likely to adopt similar reasoning to this decision when dealing with vaccine mandate cases and rule that unpaid leaves for refusing to comply with vaccine mandates were valid and not constructive dismissals.