Grocery giant Loblaw acted reasonably when it suspended a worker in Calgary without pay for refusing to wear a mask during the COVID-19 pandemic, an Alberta court has ruled.
Nor did that suspension amount to constructive dismissal, the Court of Queen’s Bench of Alberta said, as the worker made a choice to not follow policy and therefore not work.
Michael Benke sought an exemption to both Loblaw’s mask policy and a City of Calgary bylaw based on an undiagnosed medical condition.
Benke’s doctor provided him with a certificate stating he did not have to wear a mask in the early stages of the pandemic so that he could be exempted from complying with the Calgary’s mask bylaw.
He later sought additional notes from his doctor so that his exemption to the city’s bylaw, and his employer’s policy, could continue. On these occasions, his doctor declined to state that Benke’s request to be exempted from wearing a mask had a medical justification.
Benke began working for Loblaw in April 2002 on a part-time basis. In August 2003, he became a full-time employee. Over the years, he received several promotions and by 2020 his title was Customer Experience Specialist – Produce.
His job included overseeing the produce and floral departments of Loblaw’s 61 Superstores in Alberta and British Columbia. He acted as a liaison between store departments and broader company management.
He was provided with a company car, which was only available to Loblaw employees who drove more than 28,000 kilometres annually for work.
In March 2020, when the COVID-19 pandemic came to Canada, Loblaw directed Benke and similar employees to cease store visits and to work remotely until further notice. Sometime later in 2020, the expectation that he would make store visits resumed.
On July 1, 2020, the City of Calgary passed a mask bylaw that took effect on Aug. 1, 2020. People in public places were required to wear a mask to mitigate the spread of the virus.
It contained several exemptions, including one for people with an “underlying medical condition or disability which inhibits their ability to wear a face covering.”
On July 28, 2020, Benke’s doctor completed a “Work Absence Certificate” that said he “assessed in this office and is unable to wear a face mask as per the City of Calgary bylaw due to illness.”
The illness was not defined by Dr. Ingemaud Gerber.
Loblaw accepted this note and allowed him to not wear a mask when he was required to be on-site. Between August and November 2020, he performed store visits without a mask.
On Aug. 29, 2020, Loblaw adopted a mandatory mask policy for all its stores across Canada. It provided exemptions for children under two; people with medical conditions; people who could not place, remove or use a mask without assistance; and a human rights exemption.
The policy for employees read as follows:
“[Employees] are expected to comply with the requirement to wear a mask while at work. [Employees] unable to wear a mask based on any of the above noted exemptions should speak with their manager or human resources regarding their accommodation needs. Medical services will provide support to stores, where required, for accommodation needs based on a medical condition.”
Second doctor’s note
Sometime between September and November 2020, Benke participated in a conference call where the mask policy was discussed.
After the call, he spoke to Lopa Parikh, senior HR director at Loblaw, to discuss obtaining an exemption. Parikh gave him a blank form to request an exemption. She told him he was not required to disclose his condition, but the doctor was required to state on the form that he has a disability that exempts him from wearing a mask.
On. Nov 25, 2020, he returned a note from Dr. Gerber to Loblaw. The form had a check mark beside the statement “is unable to wear a face mask.” But the words “due to the following medical condition/s or disability” were crossed out. Benke said the words were crossed out by Dr. Gerber because he told her he was not required to disclose his medical condition.
After it received the note, Loblaw had an occupational health nurse it employed follow up with him concerning the exemption. That nurse, Jody Nelson, said Benke told her his request for exemption from the policy was “not medical.” Benke denied saying that.
Nelson then asked Benke to wear a face shield instead of the mask, and he said he could not.
Dr. Gerber wrote the following two notes. The first, on Dec. 23, 2020, reads:
There are very limited reasons for people to be exempt from wearing masks in indoor public places at this time. Unfortunately, Mike 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 patient 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.
A note on Jan. 11, 2021, indicated that Benke had “ongoing medical concerns.” Dr. Gerber then said that she was “not in a position to make a final decision whether the patient should be forced to wear a mask or not….” She concluded by saying that “it is in the best interest of the patient not to be in public at this time and that if at all possible, continue to do his work from home.”
“Dr. Gerber’s January 11, 2021 letter reads as if she is trying to be respectful of her patient by validating his as yet undiagnosed medical condition while, at the same time, not transgressing any professional standards by misrepresenting to Loblaw that Mr. Benke qualified for a medical exemption from legal and employer policy requirements to wear a mask in public,” the court said.
“To be clear, Dr. Gerber does not say in her January 11, 2021 letter that Mr. Benke has a medical condition that prevents mask use or that he qualifies for a medical exemption to the Mask Policy or the Mask Bylaw.”
Benke was put on unpaid leave on Dec. 3, 2020.
Loblaw rescinded its mask policies on March 1, 2022, in Alberta and on March 11, 2022, in B.C. as provincial mask mandates dropped.
The court’s ruling
The court looked at a number of issues. One was whether Loblaw had a duty to accommodate Benke.
Because Benke did not show to Loblaw or prove to the court he has a disability or medical condition that affects his ability to wear a mask, this was a simple no.
“Since Mr. Benke did not show even on a prima facie basis that he had a disability, there was no reason for Loblaw to pursue the matter further or seek confirmation through an independent medical examination. I find that there was no discrimination and, accordingly, Loblaw had no duty to accommodate Mr. Benke. In the absence of a duty to accommodate, the hypothetical alternative work scenarios posited for Mr. Benke are irrelevant,” the court said.
Next up was the claim of constructive dismissal. Benke asserted that his unpaid leave was tantamount to constructive dismissal.
The court again sided with Loblaw. By refusing to comply with the mask bylaw and the mask policy, Benke “repudiated his employment contract,” the court ruled.
Loblaw’s mask policy did not amount to a fundamental change in his employment contract. His job didn’t change, he was just told to wear a mask by reason of the bylaw and the policy.
In short, Benke chose not to work. Therefore, it was reasonable for Loblaw not to pay him.
It further ruled that Benke resigned from his employment.
“Mr. Benke did not seek reinstatement in this action. In the meantime, he has also obtained full-time employment with a different employer. Despite Loblaw continuing to show Mr. Benke in their records as being on unpaid leave, there can be no doubt that he has resigned even if he did not explicitly communicate that to Loblaw,” the court said.
For more information see Benke v. Loblaw Companies Limited, 2022 ABQB 461 (CanLIII)