In Benke v Loblaw Companies Limited, 2022 ABQB 461, the Court of Queen’s Bench of Alberta weighed in on the effect of an employee’s unpaid suspension, as a result of his failure to follow a COVID-19 masking policy, on the employment relationship. The Court expressly held that the imposition of a mask policy was not a substantial change to the employment relationship amounting to constructive dismissal by the employer. Rather, the employee’s refusal to abide by the policy was a repudiation of the employment agreement by the employee.

In August of 2020, the employer, a grocery retailer, instituted a masking policy that applied equally to all of its employees and customers (the “Mask Policy”). The Mask Policy was largely the same as the masking bylaw that was passed earlier that year by the City of Calgary (the “Bylaw”), and which the employer’s stores in Calgary were subject to. The Mask Policy provided exemptions for: (i) persons with an underlying medical condition which inhibited their ability to wear a mask; (ii) persons who were unable to place, remove or use a mask without assistance; and (iii) persons who were reasonably accommodated by not wearing a mask under applicable Human Rights legislation.

The employee held a role that required him to visit many of the employer’s stores on a regular basis. He requested a medical exemption from the Mask Policy and provided a doctor’s note stating that he was unable to comply with the Mask Policy due to an illness. The illness was not identified nor was an explanation provided as to why it prevented him from wearing a mask. After further investigation by the employer, including subsequent notes from the employee’s doctor, it became clear that the employee’s request could not be substantiated on the basis of a medical condition. Despite this, the employee continued to refuse to wear a mask or a face shield in the employer’s stores. Accordingly, he was placed on an unpaid leave of absence.

The employee asserted that he was constructively dismissed because his employer failed to accommodate his disability. In its decision, the Court applied the standard test for constructive dismissal articulated by the Supreme Court of Canada in Potter v New Brunswick (Legal Aid Services Commission), 2015 SCC 10, and held that the employer’s introduction of the Mask Policy was not a substantial change to the employment agreement because the employee’s duties did not change. The Court noted that although the unpaid leave was a substantial change to the employment relationship, it was not a breach of the employment agreement, as the essence of such an agreement is that the employee will work and the employer will pay the employee for that work. In this case, the employee was not working by reason of a voluntary choice that he made not to comply with the Mask Policy and the Bylaw.

Ultimately, the Court held that by refusing to comply with the Bylaw and the Mask Policy, the employee repudiated his employment contract. Rather than accepting the repudiation and terminating his employment, which the employer was entitled to do, the employer acted reasonably and placed the employee on unpaid leave, indicating an intention to continue the employment relationship as opposed to terminating it. Therefore, any damages suffered by the employee as a result of being put on unpaid leave were found to be self-inflicted and not the responsibility of his employer.

This is an encouraging decision for employers who have implemented similar policies with respect to masking during the COVID-19 pandemic. It provides clear authority that such policies, when applied reasonably and with consideration for human rights based accommodation where required, will not give rise to a constructive dismissal.