Covid-19 Case Law Favours Precautionary Principle

Covid-19 prompted unprecedented government mandates and employer directed precautionary action to ensure service continuity and protect vulnerable populations.  Masking, rapid testing, and vaccination requirements designed to keep people safe spawned endless administrative headaches for leaders and HR professionals, not to mention legal challenges.  On the legal front, at least, the outcome of those legal challenges has largely favoured employers.

Vaccination Cases

Over the last year we’ve seen the case law overwhelmingly favour an employer’s right to implement mandatory vaccination policies and hold non-compliant staff on unpaid leaves of absence for extended periods of time. This applies to both union and non-union employees.

Non-Union Employees

In recent Alberta case referred to  as Van Hee v. Glenmore Inn Holdings Ltd., 2023 ABCJ 244 (CanLII), a non-union employee, a server with 13 years of service, claimed constructive dismissal for refusing to adhere to her employer’s mandatory vaccination policy (“the Policy”). Notably, she did not cite any medical condition or religious belief preventing her from receiving the COVID-19 vaccine.

The Government of Alberta declared a public health emergency in September 2021 due to the fourth wave of COVID-19, allowing businesses, including the defendant employer, to operate under the “Restrictions Exemption Program.” Consequently, the employer implemented the mandatory vaccination policy in mid-September 2021, requiring employees to receive the first dose by October 4, 2021, and the second dose by November 15, 2021.

The employee, after two meetings with the employer discussing the policy and its consequences, was placed on unpaid leave on October 4, 2021. Despite the indefinite and unpaid nature of the leave, the company expressed its intention for the employee to return once vaccination requirements were met or if public health guidelines changed. The employee had the option to maintain company benefits by continuing to pay the employee portion of the monthly premium during the leave.

During the trial, the plaintiff argued that her employer, not subject to any government or health authority vaccination mandate, unilaterally altered the terms of her employment by placing her on unpaid leave without contractual authority, constituting constructive dismissal. However, the court determined that the crucial consideration was whether the policy was a reasonable response to the uncertainties posed by the pandemic.

 The court’s decision is likely to benefit other employers facing challenges to mandatory vaccination policies and leave decisions due to non-compliance and highlighted several factors, including:

          • The employer’s policy, though not mandated by government or health authorities, was a reasonable and lawful response to pandemic uncertainties, striking a balance between various interests.
          • The policy was essential for the employer’s face-to-face business to continue operations during the pandemic, preventing potential outbreaks and temporary closures.
          • The employer had a legal obligation to take reasonable steps to protect the health and safety of its employees and others.
          • The uniform application of the vaccination policy to both guests and employees aimed to create a safe environment.
          • The unpaid leave was not a disciplinary measure but rather a practical response to non-compliance.

Consequently, the court dismissed the claim of constructive dismissal and breach of contract, ruling in favor of the employer and denying pay-in-lieu of notice. The court further concluded that the employee had effectively resigned while on an unpaid leave of absence.

While individual cases must be assessed independently, the Van Hee decision, coupled with the precedent set in earlier decisions, signals potential support from courts for upholding mandatory vaccination policies for non-union employees in the 2021-2022 period.

Union Employees

Similar precedents have also been set in unionized settings.  In fact, recent case law suggests that employers were in good shape to continue holding unvaccinated employees on leave for failure to comply with mandatory vaccination policies until at least April 2023.  A recent Ontario arbitration decision referred to as UFCW, Local 175 and Coca-Cola Canada Bottling Ltd. (Hedden), Re builds upon what is now a very strong line of case law establishing that employers were within their management rights to require staff to be vaccinated as a condition of active employment.

In this case a union employee was disciplined then dismissed for refusing to disclose their vaccination status under a mandatory vaccination policy.  The employee was reinstated before the hearing (which took place this fall), but the discipline remained on record and no back wages were provided.  The union sought back wages for the full duration of the time between the employee’s suspension and reinstatement, and the removal of discipline.

The arbitrator held that the policy remained reasonable until April 2023 and therefore, even if there was not just cause for termination, the employee would have been on an unpaid leave until reinstated in any event. Moreover, the arbitrator held that the Grievor was insubordinate for refusing to disclose their vaccination status, and upheld the disciplinary suspensions.

Rapid Testing

Similar findings have been made in relation to workers who refuse to cooperate with Rapid Antigen Testing requirements. In Algoma Steel Inc. and The United Steelworkers Local 2251, an employee was terminated after he refused to submit to COVID-19 testing as an alternative to vaccination.  This case confirmed that the employer was within their right to terminate the employee’s employment for just cause.

Masking Mandates

Mask mandates have also continued to generate case law precedents that favour an employer’s right or require people to mask, including workers, customers and other persons entering their premises.  There have been countless human rights complaints filed by individuals challenging mask mandates and to date the vast majority have been unsuccessful – usually because the applicants have been unable to demonstrate that masking contravenes a bona fide human rights related restriction.  For instance, in the recent case of Splitt v. Nature’s Corner Bakery and Café, the applicant claimed to have been discriminated against when they were asked to leave the respondent’s store for refusing to wear a mask. Here, the Applicant claimed to have told the respondent that they were exempt from wearing a mask but would not explain the basis for the exemption to the Applicant.

The Human Rights Tribunal (HRTO) gave the parties notice in March 2023 that they intended to dismiss the case, since it didn’t explain how the Applicant was discriminated against or provide any details of specific acts of discrimination. The HRTO gave the Applicant an opportunity to explain. In response, the Applicant just claimed that the mask restricted their breathing, and tried to link that to disability without further detail or medical evidence. The Tribunal found that there was not a disability at play.

In addition, the Applicant claimed that their Chrisitan creed prevented them from wearing a mask, as they believed in freedom of bodily autonomy and the right to choose not to restrict their breathing. The HRTO found that this was in fact a singular belief that didn’t meet the definition of creed under the Code. The Applicant also tried to argue that wearing a mask was a form of “deception” that was prohibited by their Christian faith, with references in scripture to prohibitions on lying – however, the HRTO rejected this, finding that this did not create an objective requirement in the Chrisitan faith against mask wearing.

PooranLaw will continue to monitor the ongoing legal developments related to COVID-19 and relevant government mandates and report on them here. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.

Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.