[co-author: Varun Kapoor - Articling Student]

In the case of Van Hee v Glenmore Inn Holdings Ltd., 2023 ABCJ 244 (Van Hee), Justice L.L. Burt of the Alberta Court of Justice (the Court) held that an employer was justified in unilaterally placing an employee on an unpaid leave of absence due to their failure to comply with the employer's COVID-19 vaccination policy.¹ The Court concluded that the unpaid leave was not a constructive dismissal. The Court’s decision further affirms the use of mandatory vaccination policies in the employment and pandemic context.

Background

The COVID-19 pandemic created a myriad of challenges in the workplace—from remote work, to layoffs and salary rollbacks, to procedural changes in order to allow a safe return to the workplace—employers and employees were faced with a constantly shifting work environment. Few pandemic related workplace issues garnered as much attention as the widespread implementation of mandatory vaccination policies (MVP). During the height of the pandemic, the rationale supporting MVPs was self-evident and a recent ruling of the Alberta Court of Justice has affirmed employers' authority to enforce reasonable and justified MVPs, including by placing employees who refused to be vaccinated on an unpaid leave.

In Van Hee, the plaintiff employee (the Employee) was a 57-year-old server in Calgary working for the defendant, Glenmore Inn Holdings Ltd. (the Employer). The employment agreement stated, "the [Employer] may add, change or delete policies as required."² Statutory obligations under occupational health and safety legislation also required the Employer to take reasonable steps to protect the health and safety of its employees and the public.

In September of 2021, concurrent with the fourth wave of the COVID-19 pandemic and the introduction of the Government of Alberta's "Restrictions Exemption Program", the Employer implemented a COVID-19 MVP requiring employees to be fully vaccinated against COVID-19 with a first dose by October 4, 2021, and a second dose by November 15, 2021, subject to medical exemptions and accommodations (the Policy). The Policy stated that noncompliance could result in an unpaid leave of absence.³

The Employee disagreed with the Policy, citing concerns about the safety of COVID-19 vaccines; however, she did not provide a medical exemption. The Employee chose to remain unvaccinated, and the Employer placed her on an indefinite unpaid leave on October 4, 2021. On November 15, 2021, the Employee provided a draft Civil Claim to the Employer, alleging constructive dismissal due to "significant unilateral changes to the terms of her employment".⁴

The Policy was a Reasonable and Justified Response to the COVID-19 Pandemic

In determining whether the leave of absence amounted to a constructive dismissal, the Court turned to the legal tests set out in Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10.⁵ As an administrative suspension was at issue, "the key question [was] whether the [Employer] met its burden to show that the suspension was reasonable and justified."⁶

To examine whether the leave of absence, and by extension, the Policy, were reasonable and justified, the Court considered the duration of the suspension, whether the suspension was with pay, and whether the employer acted in good faith for a legitimate business reason.⁷ The Court also canvassed pandemic-related Government of Alberta publications and health orders, which included the Restrictions Exemption Program (in force at the relevant time), which notably did not require employees to be vaccinated.

Ultimately, the Court concluded that the Policy was reasonable and justified, and therefore dismissed the Employee's claim of constructive dismissal. The key conclusions were as follows:

• The indefinite nature of the leave of absence was justified given both the uncertain context of the pandemic at the time the Policy was enacted, and the clear circumstances that would end the leave of absence (being vaccinated or a change in public health advice);
• The unpaid leave of absence was reasonable and not disciplinary in nature as the Employee made a voluntary choice not to comply with the Policy. Notably, the Employer permitted the Employee to continue receiving benefits;
• As the Employer's business was predicated on providing face-to-face services, the Policy, which was applicable to both employees and guests, mitigated the risk of an outbreak and corresponding temporary closures, while also promoting safety in the premises; and
• Although the Employer was not subject to an explicit requirement to have its employees vaccinated, the Policy was reasonable and lawful in response to the uncertainty created by the COVID-19 pandemic. The Employer considered its statutory obligations to ensure health and safety per occupational health and safety legislation,⁸ and the Policy “struck an appropriate balance" between the Employer’s business interests, the rights of its employees to a safe work environment, and the safety concerns of its customers while ensuring that the Employee could maintain a principled stance and remain unvaccinated without losing her employment.⁹

Looking Ahead

There are relatively few civil litigation judgments addressing the issue of MVPs in a COVID-19 employment context. Emergency litigation and corresponding Charter challenges, labour arbitration decisions and human rights decisions, have trended towards upholding COVID-19 MVPs. Van Hee provides further optimism for employers. It suggests that placing employees on an unpaid leave of absence due to noncompliance with a reasonable and justifiable MVP is defensible. This is particularly relevant as limitation periods begin to expire for resignations/terminations that may have occurred during more intense periods of the COVID-19 pandemic. It remains unclear, however, whether an MVP outside of an emergency or pandemic setting would continue to be “reasonable and justified" as the hazards presented by COVID-19 ebb.

The application of Van Hee is not limited to MVPs. This decision underscores the importance of well drafted policies that are effectively enforced. Employers are well served to ensure that their policies are drafted, communicated to employees, and monitored in a manner that the policies not only protect the workplace, and the interests of those in it, but are also enforceable when challenged.