For over two years, employers have been grappling with the legal repercussions of implementing COVID-19 related policies in with workplace. Most notably, the right course of action for managing employees who seek exemptions from wearing facemasks and/or getting COVID-19 vaccines has remained unclear and untested by the courts. Cases involving these topics have been slowly working their way through the court and labour arbitration systems. Recently, two interesting cases related to COVID-19 policy exemptions were released; one found in the employee’s favour and one found in the employers’ favour.

Benke v. Loblaw Companies Limited – employee repudiated employment contract by refusing to wear mask

In this Alberta decision, the employee, Mr. Benke, claimed he was constructively dismissed when the employer placed him on an indefinite unpaid leave for refusing to wear a face mask. Mr. Benke had sought an exemption to the mandatory workplace face mask rule, implemented on August 1, 2020, based on an undiagnosed medical condition. Mr. Benke’s doctor declined to confirm that Mr. Benke’s request to be exempted from wearing a mask had a medical justification. The employee was placed on an unpaid leave and subsequently accepted employment elsewhere.

The court found that the employer had no obligation to accommodate Mr. Benke because the employee did not establish that he had medical justification for the mask exemption. The court stated that Mr. Benke was put on an unpaid leave because he would not perform an essential part of his role. Specifically, he could not visit the employer’s stores, which was an essential part of his job, because he refused to wear a face mask in accordance with their policy and a municipal by-law in place at the time. The court held that, by refusing to comply with the facemask requirements, Mr. Benke repudiated his employment contract. In doing so, the employer is entitled to accept the repudiation and treat the employment relationship as terminated. In this case, however, the employer did not accept the repudiation and instead put the employee on an unpaid leave. The court concluded that, by accepting employment elsewhere and not seeking reemployment with his employer, the employee had resigned, even if he had not explicitly communicated that to the employer.

Public Health Sudbury & Districts v Ontario Nurses’ Association – refusal of creed-based vaccine exemption found to be prima facie discrimination

This recent labour arbitration decision dealt with a nurse who was denied an exemption to the employer’s mandatory COVID-19 vaccination policy. The nurse was a devout Roman Catholic and a member of the Latin Mass community, which takes a more traditional and orthodox approach to Catholicism. The basis of her creed-based objection to the COVID-19 vaccines was that they used fetal cell lines in their research, and to receive one of the vaccines in these circumstances would be to condone, cooperate with, or participate in abortion. Based on her refusal to be vaccinated, she was placed on an unpaid leave of absence and then terminated under the employer’s policy.

The arbitrator determined that the nurse was sincere in her belief that her faith does not allow her to get vaccinated, even if the connection between fetal cell lines and the COVID-19 vaccines is “factually and objectively quite remote.” The arbitrator noted that the lack of a sufficiently close connection between the COVID-19 vaccines and fetal cell lines was supported by the science associated with the vaccines and the Catholic Church’s own leadership, including the Pope. Despite this, the arbitrator held that, since the grievor held a sincere belief and there was a sufficient nexus to her creed, that to get vaccinated would interfere with the exercise of her faith and her relationship with the divine. The grievor was therefore entitled to an exemption based on the provisions of the Ontario Human Rights Code on the grounds of creed. It followed then that the grievor was prima facie discriminated against when the employer applied its vaccine policy to deny the grievor’s requested exemption.

Notably, this arbitration decision dealt solely with whether there was prima facie discrimination and not whether the employer could accommodate her short of undue hardship.

Take Away

Both of these cases are highly fact specific and turned on the legitimacy and sincerity of the employee’s request for the exemption. In Benke, the employee simply did not have enough evidence to establish that his medical condition prevented him from wearing a face mark, whereas in Public Health Sudbury & Districts, the employee did establish that she had a sincerely held belief connected to her creed which prevented her from being vaccinated. In all cases, employers must carefully consider the legitimacy of an employee’s request for an exemption to COVID-19 safety policies. This analysis should consider the changing rules, legislation and advice regarding COVID-19. It is important to recognize that cases decided from facts that occurred earlier in the pandemic may not be entirely applicable in light of changes to COVID-19 safety regulations. The lawyers at Heeney Vokey LLP would be happy to assist employers with navigating this new and developing area of law.