In Benke v Loblaw Companies Limited [Benke], a decision from the Court of Queen’s Bench of Alberta (“ABQB” or the “Court”), the Court held that an employer’s decision to place an employee on an unpaid leave of absence for refusing to comply with a mandatory mask policy did not amount to a constructive dismissal. Rather, the Court stated that the employee’s refusal to comply with the mandatory mask policy amounted to his resignation.
Mr. Benke (the “Employee”) refused to comply with the Employer’s mandatory mask policy (the “Policy”) which required him to wear a mask at work. The Employee stated that he should be exempt from compliance with the Policy because he had an undiagnosed medical condition. The Employer requested that the Employee provide further medical information to support his request, however the Employee’s doctor was unable to provide proof of a medical condition or a disability that would preclude the Employee from wearing a mask. The Employer proceeded to place the Employee on an indefinite unpaid leave of absence due to his failure to comply with the Policy and to provide medical justification for a valid exemption. The Employee subsequently filed a constructive dismissal claim against the Employer.
Court of Queen Bench’s Decision
The Court dismissed the Employee’s action and held that the Employer’s decision to place the Employee on an indefinite unpaid leave of absence did not amount to a constructive dismissal. The Court stated that a core part of the Employee’s duties as a Customer Experience Specialist was to visit Loblaw stores in-person, which the Employee was unable to do when he refused to comply with the Employer’s mandatory mask policy. The Employee’s refusal to comply with the Policy therefore amounted to the Employee’s resignation from his role, or in other terms, repudiation of his employment contract.
The Court noted that the Employer’s decision to implement the Policy was not a substantial change that would breach the Employee’s employment agreement, as the Employee’s job responsibilities did not change. The Court further stated that the Employer’s decision to place the Employee on an unpaid leave of absence was a substantial change to the employment relationship, however it was a reasonable decision given that the Employee voluntarily chose not to comply with the Policy and was therefore unable to perform his work duties.
Duty to Accommodate
The Court addressed the Employee’s position that he was, in part, constructively dismissed because the Employer failed to accommodate his medical condition by not providing him with alternative work. The Court stated for claims of discrimination on the basis of a disability, it is the complainant’s responsibility to demonstrate that they have a characteristic which is protected from discrimination under the applicable human rights legislation.
In this case, the Court held that the Employee failed to establish that he had a disability that would require the Employer to provide an accommodation because the Employee was unable to obtain valid medical justification to support his exemption request. The Court stated that in the absence of proving that he had a disability that would require accommodation, the Employer did not have a duty to accommodate.
Takeaways for Employers
This decision from Court of Queen’s Bench of Alberta is favourable for employers, as it clarifies that a well-drafted mandatory mask policy that is properly implemented will not constitute a unilateral change that substantially alters an employment contract and rises to constructive dismissal, provided that there is no valid proof of exemption provided by the employee. Furthermore, this decision affirms that where an employee fails to provide proper proof of a valid medical or religious exemption from a mandatory mask policy, and refuses to comply with such policy, this refusal may be treated as a repudiation of the employment contract.
Employers that have implemented a mandatory mask policy in their workplace should continue to make reasonable considerations for any accommodations that may be necessary where an employee has a valid human rights-based exemption from complying with the policy. In the absence of a valid exemption, however, the Benke decision suggests that an employer may have a justification for placing an employee on a leave of absence where the employee is unable to perform their work duties as a result of choosing not to comply with the mandatory mask policy.
It remains to be seen as to whether courts will apply this same line of reasoning to cases where an employer similarly placed an employee on a leave of absence for failing to comply with an employer’s mandatory vaccination policy.