Alberta worker didn't quit and wasn't fired, but unpaid leave reasonable: board
An Alberta employer that placed a worker who refused to comply with its vaccine mandate on unpaid leave did not fire the worker, the Alberta Labour Relations Board has ruled.
The worker was a sales associate and design consultant for Country Living Furnishings, a small retail furnishings store and interior design service in Calgary.
On Sept. 10, 2021, the worker was on a medical leave when the owner sent an email to all employees stating that any employees who weren’t fully vaccinated would not be allowed to enter client’s homes and would be required to wear an N95 mask when inside the store or the warehouse. They would also have to provide a negative COVID test once a week.
Four days later, the worker sent an email to the owner acknowledging the need to comply with the government mandate to wear a mask in public places, but she questioned requiring an N95 for unvaccinated people. She also questioned the test requirement.
The owner replied that she might move on testing but if the worker wanted to return to work she had to wear a mask at all times. The worker agreed.
An employer’s vaccination mandate was reasonable due to the nature and risks of COVID-19, an Ontario arbitrator found.
Public health emergency
On Sept. 15, Alberta’s Chief Medical Officer of Health declared a state of public health emergency that required the wearing of face masks at all times in indoor spaces under the control of a business. Country Living’s owner emailed the worker to ask if she planned to get vaccinated, to which the worker replied that it was private medical information that she wasn’t required to disclose.
The worker worked as scheduled from Sept. 18 to Oct. 5, wearing a mask in the store. She also ate her lunch in her car so she wouldn’t have to remove her mask inside.
The owner returned from vacation on Oct. 5 and was aware of vaccine mandates being implemented by governments and businesses. She had also been receiving calls from customers and suppliers asking if her staff were all vaccinated, so she decided to implement a vaccine mandate for Country Living employees. By this point, only the worker and one other employee weren’t vaccinated, and the other employee was vaccinated by Oct. 6.
On Oct. 6, the worker reported for work and the owner told her that she could no longer work there without being vaccinated. She confirmed that the worker had to leave and the worker said it was a wrongful dismissal. She gathered her belongings and left.
An Ontario court found that the worker of a Bell contractor who didn’t comply with Bell’s vaccination mandate frustrated his employment contract.
Vaccination policy
Country Living implemented a vaccination policy on Oct. 8 that indicated that any employee who refused vaccination would be placed on an unpaid leave of absence until proof of vaccination was provided. After 28 days, a record of employment (ROE) would be submitted.
The policy also allowed for accommodation if requested.
The owner reached out to the worker on Oct. 27 to ask if she would be coming back to work with her vaccination record as her leave was ending soon. The worker said she could return and provide proof of immunity by blood test, a letter of medical exemption from her doctor, and a letter of religious exemption from a pastor. The owner replied that only vaccinated employees were allowed at the store.
Four days later, the worker asked for a letter of reference. The owner offered to provide one in exchange for a letter of resignation, but the worker refused because she hadn’t resigned. She said she had been fired for not providing proof of vaccination and the owner replied that she hadn’t been fired but had been placed on an unpaid leave of absence. The owner offered to extend the leave so the worker had more time to get vaccinated and return to work.
An employer without its own vaccination policy could place employees who didn’t comply with clients’ mandates on unpaid leave, an Ontario arbitrator ruled.
Worker refused to get vaccinated
The worker provided a COVID antibodies blood test and said that her doctor advised against getting vaccinated because her natural immunity was already high and providing proof of vaccination was against the Freedom of Information and Protection of Privacy Act.
Country Living extended the deadline to Dec. 31, but the worker said it was against the law to require proof of vaccination or place her on unpaid leave. She insisted that she had been fired.
On Nov. 8, the worker asked for her ROE and the company provided one indicating that she had quit. The worker requested eight weeks’ pay in lieu of notice and there was no further communication between them.
The worker filed a complaint for pay in lieu of notice and an employment standards officer found that directing an employee to leave work until she was vaccinated amounted to termination of employment. The officer ordered Country Living to pay the worker termination pay, wages, and an order of officer fee totalling more than $8,000.
Country Living appealed the order on the grounds that the officer’s assessment was flawed. It maintained that it never intended to terminate the worker’s employment.
A worker’s challenge of their employer’s vaccination policy is not an occupational health and safety issue, the Ontario Labour Relations Board found.
Employer concerned about employee health
The employment standards appeal body of the Alberta Labour Relations Board noted that by the time that Country Living implemented the vaccination policy, the company knew that the worker would be the only employee affected. However, the decision was based on calls from customers and suppliers as well as the owner’s concerns over the health of employees, and had been made before meeting with the worker on Oct. 6 to determine her intentions - the policy wasn’t implemented to jusify dismissing the worker, said the board.
The board found that the owner’s actions were consistent with its position that the worker hadn’t been terminated – she asked the worker if she had been vaccinated and confirmed that she had not been dismissed. When the worker offered to provide the blood test and letters of medical and religious exemptions, these were new issues that hadn’t been raised before, said the board, noting that they weren’t a request for accommodation of a disability or the worker’s individual beliefs, but were more general statements.
“In the end, the employment relationship became a stalemate because the employer insisted the [worker] become vaccinated and the [worker] refused to be vaccinated,” said the board in finding that the worker didn’t quit but also wasn’t terminated.
The board determined that Country Living had the right to implement a vaccine mandate and the worker had the right to refuse to be vaccinated. However, the worker did not have the right to be exempt from the consequences of her choice and neither the company nor the Employment Standards Code could alleviate the economic consequences of the unpaid leave, said the board.
The board overturned the order to pay the worker in lieu of notice, leaving Country Living only responsible for three hours’ wages for the day the worker was sent home, plus vacation pay and a reduced order of officer fee - a total of $192.22. Country Living Furnishings Inc. and Sellen, Re, 2023 CarswellAlta 274.
