Worker put on unpaid leave for refusing to get vaccinated was not fired, B.C. court rules

A tray of COVID-19 vaccines are seen at an immunization clinic run by the Fraser Health Authority.

A B.C. accountant who sued her employer over its mandatory COVID-19 vaccination policy has had her claim dismissed.

Deepk Parmar's civil claim against Tribe Management Inc. alleged that the company "constructively dismissed" her when it placed her on unpaid leave for three months for failing to comply with the policy when it was implemented in late November 2021.

In a decision issued last week, B.C. Supreme Court Justice Heather MacNaughton concluded that Parmar's leave of absence did not amount to a constructive dismissal. 

Instead, the judge concluded Tribe's decision to implement a mandatory vaccination policy was "a reasonable and lawful response to the uncertainty created by the COVID-19 pandemic based on the information that was then available to it."

THE POLICY

According to the court decision, Tribe is a publicly traded property management company that acquired Gateway Property Management in the summer of 2021. Parmar had been employed by Gateway since 2003, working her way up to a senior management position in the accounting department, which she continued to hold when Tribe acquired the company.

Before and after the acquisition, MacNaughton wrote, Parmar was a valued employee and there were no issues with her job performance.

After the COVID-19 pandemic began, Parmar began working from home, though the nature of her job required being present in the office periodically to sign cheques and fulfill other duties, according to the court decision.

"There is no dispute that Ms. Parmar carefully observed or exceeded all of the public health requirements while she was in the Tribe office," MacNaughton wrote.

As the pandemic evolved and vaccines became more widely available, the judgment indicates, Tribe asked workers to disclose their vaccination status and found that 84 per cent of its more than 200 employees were vaccinated.

"(Tribe managers) regarded the 16 percent who were still unvaccinated (35 employees out of 220) as an unacceptably high number considering the risks of COVID-19 as they were then understood and being presented by public health and in the media," MacNaughton wrote.

The company announced its mandatory vaccination policy in October 2021. By the Nov. 24, 2021, deadline, only Parmar and one other employee remained unvaccinated, according to the judgment.

THE OBJECTIONS

Tribe's mandatory vaccination policy allowed exemptions for religious or medical reasons, but Parmar did not claim either, according to MacNaughton's decision.

Rather, in the lead-up to the policy's implementation, Parmar spoke with supervisors to inquire whether vaccination would be "a condition of employment." She expressed concern about what MacNaughton described as "severe health complications" she had seen family members develop after receiving their shots.

Specifically, according to the decision, Parmar's father developed severe headaches, "brain fog, confusion, seizure-like episodes, shortness of breath, and overall weakness making it difficult to get out of bed." Her aunt experienced "an endometriosis flare-up" and an unidentified family acquaintance "experienced numbness in her legs and was unable to walk for over a week" after vaccination.

MacNaughton noted that no evidence was presented connecting these symptoms to the COVID-19 vaccines. Nevertheless, Parmar believed there could be a causal connection and "was hesitant to get vaccinated for fear of negative side effects."

Tribe advised Parmar that there would be no exceptions to the mandatory vaccination policy, other than those for religious or medical reasons. The company declined to allow Parmar to work remotely most of the time and take rapid tests whenever she had to go into the office, according to the judgment.

Parmar was placed on unpaid leave on Nov. 24, 2021, and her communication with the company soon gave way to communication between lawyers.

"On Jan. 15, 2022, counsel for Tribe wrote to Ms. Parmar’s counsel indicating that so long as she remained unvaccinated, she would continue to be on leave, but that Tribe expected that she would return to work immediately once vaccinated or the (policy) was repealed or relaxed," MacNaughton wrote in her decision.

On Jan. 26, the same day she filed her lawsuit alleging constructive dismissal, Parmar resigned from Tribe, according to the judgment.

THE CONCLUSION

Parmar's lawsuit alleged that her employer's mandatory vaccination policy was unreasonable because it did not accommodate employees who were able to work from home "either entirely or almost entirely," MacNaughton wrote.

"The focus is on whether Tribe had bona fide business reasons, including safety reasons, for the (mandatory vaccination policy) and for placing Ms. Parmar on an unpaid leave of absence for failing to comply with it," the judge wrote. "The issue is not whether the MVP was a perfect policy, but whether it was a reasonable approach when implemented, given the uncertainties then presented by the pandemic."

After discussing what was known about COVID-19 at the time the policy was being considered and implemented, MacNaughton concluded that the policy was reasonable.

She cited the similar policies that were in place for federal and provincial public service workers at the time, as well as the BC Vaccine Card program, which required proof of vaccination to engage in many activities in the province.

"I accept that it is extraordinary for an employer to enact a workplace policy that impacts an employee’s bodily integrity, but in the context of the extraordinary health challenges posed by the global COVID-19 pandemic, such policies are reasonable," MacNaughton concluded.

"They do not force an employee to be vaccinated. What they do force is a choice between getting vaccinated, and continuing to earn an income, or remaining unvaccinated, and losing their income. Ms. Parmar made her choice based on what appears to have been speculative information about potential risks."