Written by: Jackie Laviolette, Allison Wight, Mathews Dinsdale

Managing employees who refuse to comply with a corporate face mask policy can be challenging for employers. In Canada, the Alberta Court of Queen’s Bench has officially weighed in on the debate.

 A Canadian court has ruled that putting an employee on an unpaid leave of absence for refusing to comply with the employer’s mandatory Mask Policy, did not amount to constructive dismissal. Instead, the Court ruled that the employee had resigned. 

Background

In 2020, Loblaw, a chain of supermarkets, instituted a masking policy for all employees and customers. The policy contained several exemptions, including:  

  • individuals with an underlying medical condition which inhibits their ability to wear a mask,  
  • individuals who were unable to place, remove, or use a mask without assistance and  
  • individuals who were reasonably accommodated by not wearing a mask under human rights legislation. 

Mr Benke, a Loblaw employee, sought an exemption based on an undiagnosed medical condition. When Loblaw requested further medical information, his treating physician did not substantiate a medical justification. Given Mr Benke’s non‑compliance with the Mask Policy, Loblaw put him on indefinite unpaid leave. Mr Benke claimed that this action constituted constructive dismissal and that he was entitled to substantial damages in lieu of notice of termination. 

The decision

The Alberta Court of Queen’s Bench rejected Mr Benke’s claim. It set out the following findings:

1. Mr. Benke did not present evidence of a disability or medical condition that required accommodation. For this reason, there was no discrimination meaning Loblaw had no duty to accommodate Mr Benke.

2. Imposing the mandatory Mask Policy was not a substantial change to Mr Benke’s employment. The Court noted that his job responsibilities had not changed and rather the only thing that was different was a requirement to wear a mask. The Mask Policy was also consistent with legal requirements imposed by municipalities and public health authorities.

3. Being placed on an unpaid leave was not a breach of Mr Benke’s employment agreement. The Court noted the following well-recognised principle: the essence of the employment relationship is that the employee will work and the employer will pay. Mr Benke’s inability to work was the consequence of a voluntary choice that he made and Loblaw had no obligation to pay him for not working.

Takeaway for employers

The Alberta Court’s finding in Benke provides support and clarity for employers: in the absence of a valid medical or religious exemption, a properly drafted and implemented COVID-19 masking policy will not be considered a unilateral change in the employment relationship sufficient to establish a claim of constructive dismissal (or damages for pay in lieu of notice of the end of employment).  

In fact, once an employee has refused to comply with a mask policy, the employer may be able to treat this refusal as an immediate repudiation of the employment contract (meaning the employee has broken his or her employment contract). 

It remains to be seen whether the Court’s reasoning will apply in cases of COVID-19 vaccination policies, however employers may garner optimism that decision makers appear to have little patience for employees who cannot provide some type of objective evidence in support of their requests for exemptions. 

Benke v. Loblaw Companies Limited, for the full judgment see here.   

The author gratefully acknowledges the assistance of Allison Wight, an Articling Student in the firm’s Calgary office.