Employers who last fall and winter required employees to either be vaccinated against COVID-19 or go on unpaid leave can take comfort from a recent BC Supreme Court decision that they were on solid legal footing.
The bad news for companies that still have vaccine mandates is that courts may deem those policies no longer reasonable because times have changed.
Plaintiff Deepak Parmar is also appealing Justice Heather MacNaughton’s Sept. 29 decision in BC Supreme Court that employer Tribe Management Inc. did not constructively dismiss Parmar when it placed the unvaccinated worker on unpaid leave, and that as a result she was not entitled to up to $220,000 in severance.
While the eventual outcome of the case hinges on that appeal, the judgment so far is the only one on the matter from any provincial supreme court, and is therefore likely to be looked at when similar cases across Canada are heard in provincial Supreme Courts.
MacNaughton made clear in her judgment that part of what influenced her decision was how unusual the time period was late last year and in early 2022.
“In the extraordinary circumstances of the pandemic in the winter of 2021 and January 2022, implementing a MVP [mandatory vaccination policy] was a reasonable policy choice for employers,” she wrote.
Employers should not interpret her ruling to mean that vaccine mandates for employees are equally justifiable today, given that governments have removed mandates that were in effect during the height of the pandemic, and unvaccinated people can travel freely, lawyers who worked on each side of this case told BIV.
A new case based on an employee today being put on unpaid leave for not being vaccinated would be “for another judge and another lawyer to talk about on another day,” said Alexander Holburn Beaudin + Lang LLP partner Lanny Robinson, who represented Tribe Management.
While Tribe Management’s court case sets a precedent for non-union employers and their workers during the pandemic, arbitration hearings have been held across the country with decisions impacting unionized sectors.
Some of those arbitration decisions have been emphatic that workplace policies in place and deemed reasonable one year ago are likely no longer considered reasonable.
Robinson pointed to the recent FCA Canada Inc. vs. Unifor arbitration decision in Ontario.
“The arbitrator held that the vaccine policy, although reasonable and sustainable at the time of its implementation, could not be sustained beyond June 25,” he said.
Arbitrator Marilyn Nairn wrote a warning to employers by saying that “a COVID-19 vaccine mandate defined as requiring two doses [of a two-dose vaccine] is no longer reasonable.”
Health officials, such as B.C. Provincial Health Officer Bonnie Henry, have stressed that vaccine effectiveness wanes. Vaccinated people can contract and spread COVID-19, just as unvaccinated people can.
Despite these warnings, Tribe Management’s mandatory vaccination policy remains in effect, its executive vice-president of human resources Maureen McMahon told BIV.
She said she was not concerned that courts may find her company’s policy no longer reasonable.
“There is language in our policy that says that we will review it on a regular basis,” she said. “We have reviewed it a number of times since we implemented it, but for the time being it remains in place.”
McMahon said the policy’s intent is to keep workers, and those who they come in contact with, healthy.
“We all interact with each other,” she said.
One Tribe Management employee, aside from Parmar, was impacted by the vaccine mandate, but that person relented, got vaccinated and is back at work, McMahon said.
Howard Employment Law principal Geoffrey Howard, who represented Parmar in the recent B.C. lawsuit, said he believes that requiring Parmar to be vaccinated was never reasonable – not even during the height of the pandemic.
“My client was the easiest possible person to accommodate,” he said, explaining that Parmar was an accounting manager who transitioned from a job supervising 20 people to one in which she had two direct reports.
She had also been able to successfully work at home for more than a year, communicating through phone and video links, he said.
Howard said Parmar’s objection to getting vaccinated was not because of irrational fears and misinformation spread by an anti-vaccine movement.
MacNaughton’s judgment notes that Parmar’s rationale to remain unvaccinated was in part because Parmar “observed several family members experience severe health complications following their first and second vaccines.”
A common thread through the many arbitration decisions across Canada has been to examine whether having a vaccine mandate is reasonable in specific businesses, and within specific categories of workers, group by group, Howard said.
“In my view, the [BC Supreme Court] judge didn’t take that approach,” he said. “She took a broader brush approach.” •
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