Unpaid leave for failure to comply with vaccination policy not constructive dismissal: Alberta Employment Standards Appeal Body

covid vaccine record

Recent appellate decisions from the Alberta Labour Relations Board (the Board) are the first direction in Alberta confirming that a non-unionized employee was not constructively dismissed when placed on an unpaid leave of absence for failing to comply with the employer’s mandatory COVID-19 vaccination policy, and that employees are not entitled to pay in lieu of notice of termination under the Employment Standards Code (the Code) for being placed on an unpaid leave for non-compliance with a vaccination policy.

Employers can find some reassurance as Parmar[1] starts to be applied with approval to disputes in Alberta. The province continues to see a body of authority develop that is consistent with earlier decisions by Alberta courts upholding reasonable vaccine policies and requirements that were adopted during the COVID-19 pandemic and that are consistent with guidance from governments and public health authorities.

The Calgary Climbing Centre decision

In 1831760 Alberta Ltd. (Calgary Climbing Centre Hanger) v. Jones,[2] the Vice-Chair of the Board held that the introduction of a mandatory vaccination policy and placement of a non-compliant employee on unpaid leave did not amount to constructive dismissal.

The appellant employer advised employees in July 2021 that all employees were required to be fully vaccinated with a COVID-19 vaccine by September 1, 2021. When the respondent employee declined to obtain the vaccine, the employer placed the employee on an unpaid leave as of September 3, 2021.

The Vice-Chair followed the Supreme Court of British Columbia’s decision in Parmar to conclude that the employer’s introduction of a mandatory vaccination policy did not constitute constructive dismissal. The Vice-Chair found that the appellant’s obligations under Alberta’s Occupational Health and Safety regime required it to take reasonable steps to protect the health and safety of its employees and the public. The appellant’s actions in developing, instituting and enforcing the vaccination policy by placing the non-compliant employees — including the respondent — on an unpaid leave were found to be reasonable in the circumstances and did not amount to constructive dismissal.

The Country Living Furnishings decision

In another decision from earlier this year, the Vice-Chair in Country Living Furnishings Inc. v Sellen,[3] also applied Parmar to overturn an Order of the Employment Standards Officer directing the employer to pay the employee pay in lieu notice of termination.

The Vice-Chair confirmed that the employee has the right to choose not to be vaccinated, but they must also accept the consequences of that choice: in this case, being placed on an unpaid leave from their employment. The Vice-Chair concluded that the employee was not terminated when placed on an unpaid leave and therefore was not entitled to pay in lieu of notice of termination. The Vice-Chair made the particularly helpful statement that neither the Code nor the employer can remediate the economic consequences for the employee to refuse vaccination.

[1] Parmar v. Tribe Management Inc., 2022 BCSC 1675. See our Osler Update from October 4, 2022, discussing this decision.

[2] 2023 CanLII 76366 (AB ESA).

[3] 2023 CanLII 6256 (AB ESA).