Since the start of the pandemic, and more recently as employers have begun transitioning employees back to working in person, there have been several workplace disagreements stemming from mask mandates. Employers must make reasonable efforts to accommodate employees who are unable to wear masks because of a medical condition or disability, but is the same true for employees who simply prefer not to wear them? If an employee refuses to comply with their employer’s masking policy, and they are disciplined for it, who is at fault?
In a recent case before the Alberta Court of Queen’s Bench, an employee sued their employer for constructive dismissal after they were placed on unpaid leave for refusing to comply with the mask policy.
Employee Claimed Exemption from Calgary’s Mandatory Mask Policy for Medical Reasons
In Benke v. Loblaw Companies Limited, the claimant had been employed with Loblaw for twenty years. During the relevant period, he was employed as a Customer Experience Specialist, which required him to work remotely part of the time and to visit stores across Alberta and British Columbia for part of the time. Store visits were such an integral part of his employment that he was provided with a company car based on the fact that he would be travelling at least 28,000 km per year.
When the pandemic first hit, Loblaw instructed certain employees to work remotely. The company asked these employees to resume some in-person work later in 2020. The claimant returned to visiting stores in person as of August 2020. In July, the City of Calgary adopted a mandatory mask policy applicable in all public spaces but allowed for exemptions for those with underlying medical conditions or disabilities which did not allow them to wear a mask. The claimant requested and received a note from his doctor that stated he was unable to wear a mask due to an unspecified illness. Loblaw accepted the note at that time.
Loblaw then adopted a policy requiring all employees and customers to wear masks in stores beginning August 29, 2020. The Loblaw policy provided an exemption for those who were unable to wear a mask due to an underlying medical condition. In the fall of 2020, the claimant spoke with a Loblaw Senior Human Resources Director about obtaining an exemption from the new masking policy. The Director provided him with a form for his doctor to complete. The claimant’s doctor indicated with a checkmark that the claimant was unable to wear a mask, but crossed out the next line, which read, “due to the following medical conditions and/or disabilities”.
An occupational health nurse employed with Loblaw then contacted the claimant for clarification due to the missing information on the form. Her notes from the conversation indicated that the claimant told her the words had been crossed out because his reason for the exemption request was “not medical”. In December 2020, the claimant’s doctor provided a letter which stated that the claimant did not fall into one of the limited exemption categories under the provincial mask mandate. Loblaw placed the claimant on unpaid leave in December 2020.
The claimant then brought a claim for constructive dismissal against Loblaw, stating that the unpaid leave was a unilateral change which constituted a repudiation of the employment contract.
What is Constructive Dismissal?
Constructive dismissal occurs when:
- An employer unilaterally imposes substantial changes as to constitute a breach of the employment contract, and
- A reasonable person in the employee’s position would feel that the breach fundamentally altered an essential term of the contract.
To establish constructive dismissal, the onus is on the employee to prove the first part of the two-part test, and if they are successful, the second part is assessed by the court based on an objective standard.
Unlike wrongful dismissal, constructive dismissal does not require the employee to be terminated by their employer. Rather, the conditions of the employment are changed so drastically that the employment no longer resembles the work contracted for under the original employment agreement. In most cases, a claim for constructive dismissal will be brought by the employee after they have voluntarily resigned from their employment.
Employee Repudiated his Employment Contract by Refusing to Wear a Mask
The Court rejected the claimant’s argument that Loblaw owed him a duty of accommodation, such as allowing him to work exclusively from home while the mask policy was in place. The claimant had both a legal obligation to comply with the municipal bylaw and an obligation to comply with his employer’s policy, and he was unable to demonstrate that he qualified for an exemption from either. The Court noted that the claimant was only placed on unpaid leave after voluntarily choosing not to perform his work duties due to his refusal to wear a mask in stores.
Loblaw’s imposition of a mask policy did not amount to a substantial change in the claimant’s employment. While placing him on unpaid leave was a substantial change, it was not tantamount to a breach of the employment contract. It was merely a response to the claimant’s actions. As such, a reasonable person in the claimant’s position would not view the leave as a repudiation of the employment agreement in this context.
Mask Mandates in the Workplace Generally
While the government is no longer enforcing mask mandates in Alberta, private businesses are free to request that employees wear masks in the workplace. However, employers must provide accommodations, within reason, to employees with legitimate medical conditions or disabilities that prevent them from wearing masks. In some cases, where masks are deemed necessary for employment, a refusal to abide by the policy without a legitimate exception may be seen as a repudiation of the employment contract as happened in the above case.
It is important to note that employers are free to terminate an employee for any reason, so long as they provide sufficient notice or pay in lieu.
Contact the Employment Lawyers at DBH Law for Skilled Representation in Workplace Disputes
The lawyers and staff at DBH Law believe in relationship-building and fostering strong, long-term connections with our clients. We provide a complete range of employment law services as well as effective risk management to clients in a variety of industries. We advise and represent employees and employers in issues including wrongful dismissal, termination packages, and workplace safety. We pride ourselves on the fact that most of our clients were referred to us by former and current clients. To learn more about how we can help you, contact us online or by phone at 403-252-9937.