While the COVID-19 pandemic doesn’t seem to be over, much of the country has moved beyond measures designed to prevent or slow the spread of the virus. That said, the debate over certain measures, such as whether people should have to wear masks at work, is not over. This is especially true for those involved in litigation related to COVID-19 mandates. In a recent decision from the Court of Queen’s Bench of Alberta, the court was asked to determine if a retail employer was justified in terminating an employee who refused to wear a mask.

Masking policy comes into effect

The employee involved in the matter worked at a large grocery store chain during the years 2020 and 2021. During this time, employers, municipalities, and public health authorities mandated the wearing of masks indoors at places of business. 

The employee began his time working for the employer in 2002. By the time the COVID-19 pandemic came around, he was in charge of overseeing the floral and produce departments for 61 of the employer’s locations in Alberta and British Columbia. The employee’s work required him to be in a store approximately 50% of the time. At some point in 2019 the employer claimed he began experiencing health issues. Despite no specific diagnosis being provided, the employer allowed him to be absent from work when required for medical appointments. 

In March 2020, many workers in Alberta who could complete work outside of their office or work location were directed to work from home, including the employee. By July of that year, the City of Calgary passed a bylaw stating that, by August 1, 2020, people in public places were required to wear masks. 

The employer received a letter from the employee’s family doctor on July 28, 2020. The letter stated that the employee was unable to wear a face mask “due to illness.” The doctor’s letter provided no other details about the employee’s inability to wear a mask at work. 

The employee sought a medical exemption for the workplace mask policy

From August until November, the employee was allowed to visit stores without wearing a mask. During that time, the employer also adopted a mask policy (in addition to municipal ones) that applied to customers and employees. The mask policy provided exemptions on four grounds. They were:

(1) Children under the age of two;
(2) Persons with an underlying medical condition which inhibits their ability to wear a mask;
(3) Persons who are unable to place, remove, or use a mask without assistance; and
(4) Persons who are reasonably accommodated by not wearing a mask under applicable Human Rights legislation.

While the employer had received an earlier exemption from his doctor, he was asked to fill out a form requesting one again (this time to be applied to the employer’s masking policy). The employee visited his doctor and returned the form. The form asked for the doctor to indicate that the employee was “unable to wear a face mask due to the following medical condition/s or disabilities.” The employer told the employee he was not required to disclose his medical condition, and when the form was returned, the section that read “due to the following medical condition/s or disabilities” was crossed out. 

At this time, the employee told a manager from the employer that he did not have a medical condition, which he would later deny.

Does the employee have a medical condition?

At trial, the employee claimed to have told the employer that he had a medical condition but did not disclose it. The representative from the employer told the court the employee told her he did not have a medical condition. 

Ultimately, the court ultimately sided with the employer’s version of events. The employer’s representative’s account of the conversation was bolstered by an email written two weeks after the conflict occurred. Meanwhile, the employee failed to share any evidence of a medical condition with the court. In addition, the note provided by the employee’s doctor also seemed to indicate there was no medical reason to support an exemption. In fact, the doctor provided a note in December 2020 stating,

There are very limited reasons for people to be exempt from wearing masks in indoor public places at this time. Unfortunately, (the employee) does not fall into one of these categories, and I have to stay in compliance with the Medical Officer of Health orders.

I recognize that I already wrote a note dated July 28, 2020, stating that the patient does not need to wear a mask due to illness, as per the patient’s request. The pandemic and the rules are continually evolving, and today I do not have any reason to say that the patient should be exempted from wearing a mask given the current Public Health orders and the clearly stated exemptions.

Was the employee subject to constructive dismissal?

The employee claims that he was the victim of constructive dismissal. For an employee to be “constructively dismissed” means that, while the employer did not outright terminate him, their actions left him with no choice other than to leave his employment with them. 

The employer placed the employee on unpaid leave in December 2020, something the employee asserted amounted to constructive dismissal. The test for establishing constructive dismissal requires the court to determine:

1. Whether the employer has imposed unilateral substantial changes that constitute a breach of the employment contract; and 
2. If a reasonable person in the employee’s position would have felt that the breach substantially altered an essential term of the employment contract.

The employee argued that suspending him without pay amounted to a unilateral change in the employment relationship. His lawyer referenced a Supreme Court of Canada case in which an employee who was charged with a criminal offence was suspended without pay. In this case, the court said the facts are significantly different because the suspension stems from the employee’s unwillingness to comply with policies. 

Was the employer required to accommodate the employee’s disability?

The employee also claimed the employer had a duty to accommodate his disability (or medical condition) by providing him with alternative modes of working. However, the court noted that in order to assert discrimination on the basis of a disability, the employee would have to first establish on a prima facie basis that they have a disability to begin with. In this case, the employee did not do this. This meant the employer did not have any reason to accommodate the employee’s refusal to wear a mask in line with the workplace’s policy. Ultimately, the duty to accommodate only exists when there is something to accommodate. 

In the end, the court found that the employee had resigned from his job, and has obtained full-time employment since leaving his work with the employer. As a result, the court dismissed the claim. 

HMC Lawyers works with employers and employees on matters related to constrictive dismissal

To make an appointment and get advice about an employment matter, including wrongful or constructive dismissal claims, call 1-800-480-3534 or contact us online. We represent clients in Calgary, throughout Alberta, and across Western Canada.