‘Tis the Season…For Vaccine Policies

It’s cold and flu season and after recent years, we can probably include COVID-19 in the list. After the availability of COVID-19 vaccines in 2021, we saw many employers introduce mandatory vaccine policies (“MVPs”) in order to comply with their obligations under health and safety legislation and manage their workforce in the middle of a pandemic.

However, not all employees chose to get vaccinated and we saw arbitrators in the unionized context question grapple with the question of whether a MVP was enforceable. We had yet to hear from a court in a civil dispute (non-unionized context).

That case is finally here, just in time for the holidays. In Parmar v. Tribe Management Inc., 2022 BCSC 1675, the British Columbia Supreme Court confirmed that the employer’s MVP was a “lawful response to the uncertainty created by the COVID-19 pandemic.” The case is a major win for Canadian employers as it is the first civil decision on the issue and the Court took notice of the uncertainty of the COVID-19 pandemic and the safety and efficacy of COVID-19 vaccinations.  

The Case 

Ms. Deepak Parmar worked for Tribe Management Inc., a condominium management company, for 19 years and was in a senior management role. During the COVID-19 pandemic, Tribe set in place a number of safety measures such as remote-working arrangements, regular testing and social distancing, to try to limit the spread of COVID-19. 

In the summer of 2021, vaccinations became widely available and Tribe introduced a MVP applicable to all employees, except those with a religious or medical reason protected under human rights legislation. 

Ms. Parmar refused to get vaccinated and in congruence with the MVP, Tribe placed Ms. Parmar on an unpaid leave of absence. Within two months, Ms. Parmar resigned and commenced a civil case against Tribe, alleging that she was constructively dismissed. 

The Court’s Decision 

The BC Supreme Court dismissed Ms. Parmar’s claim for constructive dismissal and held that the MVP was reasonable. The Court found that while Ms. Parmar was faced with a difficult choice of whether to get vaccinated and get paid or not to get vaccinated and not get paid, it was ultimately a choice that she had. Ms. Parmer chose to resign.  

Moreover, given the information available at the time with respect to vaccines being the best chance at preventing infections, the Court held that the MVP was a reasonable and lawful policy choice for employers in the circumstances of the COVID-19 pandemic.  

The Court further took judicial notice of the fact that vaccines are a safe and effective tool for use in people to control the spread of COVID-19 and that the pandemic was an unprecedented worldwide challenge to employers and governments alike at the time. Ultimately, it was Ms. Parmer’s choice not to comply with a reasonable MVP.  

 Conclusion 

While the decision in Parmer is a decision out of a court in British Columbia, the decision can be considered persuasive in other provincial courts. It remains to be seen whether Ms. Parmer appeals the decision and therefore some employers who set a MVP in place may rest easy. Until then, to all a good night…