[co-author: Yasamin Abhari and Seb Lloyd, Articling Students]
In a recent decision on COVID-19 vaccine mandates in the workplace (Parmar v. Tribe Management Inc.), the Supreme Court of British Columbia (Court) held that an employer is entitled to place an employee on unpaid leave of absence for failing to comply with its mandatory vaccination policy.
FACTUAL BACKGROUND
Ms. Parmar was a longstanding employee of Tribe Management Inc. (Tribe), which is in the business of providing condominium management services and employs over 200 individuals. With the onset of the COVID-19 pandemic, Tribe introduced a suite of health and safety measures, including remote-working arrangements, social distancing and limiting employee interactions.
By the summer of 2021, with the rapid increase in the supply of COVID-19 vaccines, Tribe reopened its offices and eventually introduced a mandatory vaccination policy in October requiring its employees to be vaccinated by November. The mandatory vaccination policy was applicable to all Tribe employees, except for those exempted on religious and medical grounds. Under the policy, employees who remained unvaccinated based on personal reasons would be placed on an unpaid leave of absence.
Ms. Parmar was one of two employees who refused to comply with the mandatory vaccination policy. Ms. Parmar asserted no medical or religious exemptions and, as a result of her decision, was subsequently placed on an unpaid leave of absence on December 1, 2021. On January 26, 2022, she resigned from her position and commenced litigation on the same day, claiming she was constructively dismissed from her employment with Tribe.
DECISION
The Court dismissed Ms. Parmar’s claim for constructive dismissal, holding that Tribe’s mandatory vaccination policy was a lawful and reasonable response to the COVID-19 pandemic, as was the decision to place Ms. Parmar on unpaid leave.
In its decision, the Court held that Tribe’s mandatory vaccination policy must be considered based on the information available about the COVID-19 pandemic at the time it was implemented. Moreover, Tribe’s obligation to protect the health and safety of its employees, clients and, by extension, the public must be factored in and weighed against competing policy concerns like bodily integrity. Considering the foregoing, the Court held that the mandatory vaccination policy was a reasonable and lawful policy choice for Tribe.
The Court reviewed public health orders, statements made by the federal government and Canadian arbitral decisions in coming to its decision. In particular, the Court took judicial notice of the fact that the COVID-19 virus poses a serious and significant health risk to the public and that vaccines are safe and effective for protecting individuals against severe illness. Therefore, the Court found that Tribe had bona fide safety reasons for placing Ms. Parmar on administrative leave.
The Court further considered that the mandatory vaccination policy was carefully considered. It struck a suitable balance between employee personal beliefs and the employer’s statutory obligations to protect the health and safety of its employees and clients and to uphold its position as a good corporate citizen. The mandatory vaccination policy, while not a perfect policy, was reasonable when implemented given the uncertainties and risks presented at the time.
Regarding the mandatory vaccination policy’s infringement on bodily integrity, the Court supported the stance that given the extraordinary context of the COVID-19 pandemic, policies impacting an employee’s bodily integrity are reasonable. The Court acknowledged that the mandatory vaccination policy was not the initial response to COVID-19. Tribe implemented other less intrusive safety precautions before adopting the mandatory vaccination policy.
Ultimately, the Court held that while Ms. Parmar was entitled to her personal beliefs about the safety of the vaccines, it did not trump the health and safety concerns that underpinned Tribe’s decision to implement its vaccination policy. Ms Parmar had a choice “between getting vaccinated, and continuing to earn an income, or remaining unvaccinated, and losing [her] income,” and she chose the latter, opting to resign voluntarily.
TAKEAWAYS
As this is one of the first decisions in which the courts have weighed on the issue of employer vaccination policies, this decision will have broad ramifications for employers and employees alike. The decision sheds light on the ongoing debate about whether an employer has the right to mandate proof of vaccination and potential claims arising in the future.
The Court has recognized that in the context of the extraordinary health challenges posed by the global COVID-19 pandemic, employers can rely on the information that was then available to them to respond to the uncertainties presented by the pandemic. A necessary response has been to implement a mandatory vaccination policy, and this decision confirms they are within their rights, so long as they do not infringe on an employee’s freedom to choose within the bounds of the policy. Ultimately, it is for individuals to deal with the consequences of their choices.
