Masks Insurance policies: When Workers Refuse To Comply – Worker Rights/ Labour Relations – Canada

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Managing staff who refuse to adjust to a company face
masks coverage will be difficult for employers. In Canada, the
Alberta Courtroom of Queen’s Bench has formally weighed in on the

A Canadian court docket has dominated that placing an worker on an unpaid
depart of absence for refusing to adjust to the employer’s
obligatory Masks Coverage, didn’t quantity to constructive dismissal.
As a substitute, the Courtroom dominated that the worker had resigned.


In 2020, Loblaw, a series of supermarkets, instituted a masking
coverage for all staff and clients. The coverage contained
a number of exemptions, together with:

  • people with an underlying medical situation which inhibits
    their potential to put on a masks,
  • people who have been unable to position, take away, or use a masks
    with out help and
  • people who have been moderately accommodated by not carrying a
    masks below human rights laws.

Mr Benke, a Loblaw worker, sought an exemption primarily based on an
undiagnosed medical situation. When Loblaw requested additional
medical info, his treating doctor didn’t substantiate a
medical justification. Given Mr Benke’s non-compliance with the
Masks Coverage, Loblaw put him on indefinite unpaid depart. Mr Benke
claimed that this motion constituted constructive dismissal and
that he was entitled to substantial damages in lieu of discover of

The choice

The Alberta Courtroom of Queen’s Bench rejected Mr Benke’s
declare. It set out the next findings:

1. Mr. Benke didn’t current proof of a incapacity or medical
situation that required lodging. For that reason, there was
no discrimination that means Loblaw had no responsibility to accommodate Mr

2. Imposing the obligatory Masks Coverage was not a considerable
change to Mr Benke’s employment. The Courtroom famous that his job
obligations had not modified and moderately the one factor that was
completely different was a requirement to put on a masks. The Masks Coverage was
additionally per authorized necessities imposed by municipalities
and public well being authorities.

3. Being positioned on an unpaid depart was not a breach of Mr
Benke’s employment settlement. The Courtroom famous the next
well-recognised precept: the essence of the employment
relationship is that the worker will work and the employer will
pay. Mr Benke’s incapacity to work was the consequence of a
voluntary selection that he made and Loblaw had no obligation to pay
him for not working.

Takeaway for employers

The Alberta Courtroom’s discovering in Benke supplies
help and readability for employers: within the absence of a legitimate
medical or non secular exemption, a correctly drafted and applied
COVID-19 masking coverage won’t be thought of a unilateral change
within the employment relationship adequate to determine a declare of
constructive dismissal (or damages for pay in lieu of discover of the
finish of employment).

In truth, as soon as an worker has refused to adjust to a masks
coverage, the employer might be able to deal with this refusal as an
fast repudiation of the employment contract (that means the
worker has damaged his or her employment contract).

It stays to be seen whether or not the Courtroom’s reasoning will
apply in instances of COVID-19 vaccination insurance policies, nevertheless employers
could garner optimism that call makers seem to have little
persistence for workers who can not present some sort of goal
proof in help of their requests for exemptions.

Benke v. Loblaw Firms Restricted, for the total
judgment see right here.

The content material of this text is meant to supply a basic
information to the subject material. Specialist recommendation needs to be sought
about your particular circumstances.

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