In Benke v Loblaw Companies Limited, 2022 ABQB 461, the Court of Queen’s Bench of Alberta (ABQB) dismissed an employee’s claim that he had been constructively dismissed when his employer did not accommodate him with a mask exemption and put him on indefinite unpaid leave. During the COVID-19 pandemic, the employee refused to comply with the City of Calgary’s mask bylaw and the employer’s mask policy and was therefore unable to work. The court found that the employee’s inability to work was a consequence of a voluntary choice that he made.  The employer had no obligation to accommodate him because the employee provided no medical justification for a mask exemption; the employer also had no obligation to pay the employee for not working. 

The court concluded that by refusing to comply with the mask bylaw and mask policy, the employee repudiated his employment contract and thus the employer could treat the employment relationship as terminated. In this case, however, the employer did not accept the repudiation and instead put the employee on unpaid leave. The court ultimately determined that the employee resigned from his position and any losses that he suffered while on unpaid leave were self-inflicted and not the employer’s responsibility. 

Background   

The employee oversaw produce and floral departments in his employer’s stores in Alberta and British Columbia. Visiting stores was an essential part of the role.    

The mask bylaw required people in public premises to wear a mask.  It included an exemption for “persons with an underlying medical condition or disability which inhibits their ability to wear a face covering.” 

The mask policy applied to the employer’s customers and employees and provided for several exemptions, including for “persons with an underlying medical condition which inhibits their ability to wear a mask.” 

The employee wanted an exemption from the mask policy.  The employer’s human resource department provided him with a blank exemption request form and explained to him that although he was not required to disclose his medical condition, his doctor was required to state on the form that he had “a disability that exempts [him] from wearing a mask.”  The employee returned the completed exemption request form on which the doctor placed a check mark beside the statement “is unable to wear a face mask” but crossed out the words “due to the following medical conditions or disabilities.”

An occupational health nurse followed up with the employee to obtain more information.  She claimed the employee stated that his exemption request was not “medical,” although the employee denied stating this. 

Subsequently, the doctor authored two additional documents that were provided to the employer. In the first document, she stated that the employee did not fall into any of the very limited reasons for people to be exempt from wearing masks in indoor public places, and she had no reason to say that he should be exempted.  In the second document, the doctor indicated the employee had “ongoing medical concerns,” acknowledged that Alberta Health Services had stipulated “very specific reasons for people to be exempted from wearing a mask,” and stated that she was “not in a position to make a final decision whether the patient should be forced to wear a mask or not…”, and that “it is in the best interest of the patient not to be in public at this time and that if at all possible, continue to do his work from home.”

Decision  

Duty to Accommodate

The court emphasized that the employee did not show to the employer or prove to the court that he had a disability or medical condition that affected his ability to wear a mask and the employee’s doctor did not say that he had a valid medical reason to be exempted from the mask bylaw or the mask policy.  Accordingly, the court found that the employee did not have a disability, there had been no discrimination, and the employer had no duty to accommodate the employee. 

Constructive Dismissal   

The court did not agree with the employee’s argument that the employer constructively dismissed him when he was placed on unpaid leave.  It found that the employee was put on unpaid leave because he would not perform an essential part of his duties, i.e., he would not visit stores because the mask bylaw and mask policy required him to wear a mask. 

In arriving at this conclusion, the court addressed the two questions that set the standard for constructive dismissal in the seminal case, Potter v. New Brunswick (Legal Aid Services Commission), 2015 SCC 10:

• Did the employer unilaterally impose a substantial change that constitutes a change of the employment agreement?
• If so, would a reasonable person in the employee’s position have felt that the breach substantially altered an essential term of the employment contract?    

The court concluded that the employer’s imposition of the mask policy was not a substantial change, and it did not breach the employment agreement.  It noted that, “The essence of the employment bargain is that the employee will work and the employer will pay,” and stated that because the employee was not working due to a voluntary choice that he made not to comply with the mask policy and mask bylaw, it was reasonable for the employer not to pay him. 

Moreover, the court found that a reasonable employee in the employee’s position would not have felt that an unpaid leave due to a failure to abide by the mask policy and mask bylaw substantially altered an essential term of the employment contract. 

Repudiation

The court decided that by refusing to comply with the mask bylaw and mask policy, the employee repudiated his employment contract.  The employer could choose to accept the repudiation and treat the employment relationship as terminated, or let the contract continue.  The court found that the employer did not accept the employee’s repudiation because it placed the employee on unpaid leave and intended to continue the employment relationship.  In fact, the employer advised the employee that it was willing to work with him to facilitate his return to work and kept the employee on its system as an employee. 

Resignation

Noting that the employee did not seek reinstatement, returned his company car, brought the constructive dismissal action, made a human rights complaint, and obtained full-time employment with another employer, the court concluded that although he did not explicitly communicate it to the employer, and despite the employer’s continuing to show the employee in its records as being on unpaid leave, the employee had resigned.  

Bottom Line for Employers

The decision of the ABQB in Loblaw Companies will be welcomed by employers as it provides that:

• They may refuse to accommodate an employee who requests a medical exemption from a mandatory mask requirement but does not provide proof of a valid medical reason for the exemption. 
• Their imposition of an appropriate mask policy will not be considered a unilateral imposition of a substantial change that constitutes a change of the employment agreement.  Accordingly, it will not meet the standard required for a successful constructive dismissal claim. 
• If an employee refuses to comply with a mandatory mask requirement without a valid medical or religious reason for an exemption, an employer may consider the employee to have repudiated their employment contract and treat the employment relationship as terminated.   

In time, we may learn whether the reasoning of the ABQB in Loblaws Companies will be adopted by courts in respect of employees who, without valid medical or religious exemptions, refuse to comply with their employers’ mandatory COVID-19 vaccination policies.