Update by Parmvir Padda, Lawyer and Erin Brandt, Cofounder

For many employers, navigating the Covid-19 pandemic has been a challenge, particularly in the early days when deciding whether to implement a mandatory vaccination policy at work.

In Parmar v Tribe Management Inc., 2022 BCSC 1675 (“Parmar”), the British Columbia Supreme Court (the “BCSC”) considered whether placing an employee on an unpaid leave for violating an employer’s mandatory Covid-19 vaccination policy constitutes a constructive dismissal.

Background

Ms. Parmar was a senior accounting employee with Tribe Management Inc. (“Tribe”).

In October 2021, Tribe implemented a mandatory Covid-19 vaccination policy (the “Mandatory Vaccination Policy”) requiring all Tribe employees to be fully vaccinated by November 24, 2021. The Mandatory Vaccination Policy included an extended deadline for vaccination, as well as a religious and medical exemptions.

Ms. Parmar refused to be vaccinated due to personal fears of potential risks and side effects from Covid-19 vaccines. Accordingly, Tribe placed Ms. Parmar on an unpaid leave until she received a vaccine, or until the Mandatory Vaccination Policy could be removed or relaxed.

Ms. Parmar resigned from her employment and alleged that Tribe had constructively dismissed her.

Decision

In its legal analysis, the BCSC considered the following question: does an imposed leave of absence constitute a breach of contract and amount to a constructive dismissal?

The BCSC relied on the following principles set out in Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10 (also summarized by us here) to provide a framework for what constitutes a constructive dismissal: 

1. Whether there has been a single act by an employer that may breach an essential term of an employment contract with an employee; or

2. Whether an employer has taken a series of steps that, taken together, indicate an intention to no longer be bound by the terms of the employment contract with an employee.

Where the scenario in (1) is considered, two further questions must be asked:

1. Is there an express or implied term in a contract that has been unilaterally changed; and

2. Would a reasonable person in the same situation as the employee have felt that the essential terms of the employment contract were being substantially changed?

In the case of Devlin v NEMI Northern Energy and Mining Inc., 2010 BCSC 1822 the court established that certain factors should be considered when determining whether a unilateral suspension constitutes a substantial change to an employment contract (the “Devlin Factors”). In Parmar, the Court applied the Devlin Factors as follows:

• Ms. Parmar was placed on a leave for three months, which was subject to review;

• Ms. Parmar was not replaced;

• Ms. Parmar continued to receive certain benefits;

• Tribe did not intend to terminate Ms. Parmar’s employment; and

• Tribe had bona fide business reasons for implementing the Mandatory Vaccination Policy given the state of knowledge about Covid-19 at the time, namely that it was a potentially deadly virus and vaccines reduced the severity of symptoms and bad outcomes.

The BCSC ultimately concluded that Ms. Parmar was not constructively dismissed, but rather, Tribe implemented a reasonable Mandatory Vaccination Policy that Ms. Parmar chose not to comply with.

Key Take Away for Employees

For employees, Parmar sets a significant precedent: a personal decision to not get vaccinated will not excuse an employee from a mandatory vaccination policy.

Where a mandatory vaccination policy reflects the resources and information available at the time of implementation, and has appropriate exemptions built-in, the courts will likely find it reasonable.

Key Take Away for Employers

For employers, whether a mandatory vaccination policy is reasonable will vary based on the drafting of the policy, the nature of the employer’s business, and whether suitable alternatives are available at the time of implementing a mandatory vaccination policy.

What was considered reasonable at the time Tribe implemented its Mandatory Vaccination Policy might not be reasonable now. If you are seeking to implement a mandatory vaccination policy or maintain an existing policy, it is important to take into consideration relevant information available about Covid-19 at the time of implementation, which includes government directives.