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Benke v Loblaw: Unpaid Leave for Refusing to Follow Mask Policy Was Not a Constructive Dismissal


Hi everyone I’m Nadia Zaman, associate at Rudner Law and today I will talk about a recent Alberta decision in which the court found that an employer did not constructively dismiss an employee when the employee was placed on an unpaid leave of absence for refusing to wear a mask.

In Benke and Loblaw Companies Limited, the citation is 2022 ABQB 461, the employee was required as part of his job to routinely visit grocery stores. The employee refused to wear a mask or a face shield and did not provide supporting medical documentation to show that he had a legitimate exemption. The employer did not dismiss the employee, rather the employer placed him on an unpaid leave of absence. The employee sued Loblaw and alleged that he was constructively dismissed.

The court found the employer had not constructively dismissed the employee, instead placing him on an unpaid leave of absence was reasonable because the employee chose not to comply with the employer’s mask policy. The court found that Loblaw had no obligation to accommodate him because there was no medical justification or a mask exemption and it also was not obligated to pay him for not working. Even on the trial date the employer maintained the position that the employee remained an employee of the company and could return to work, since the mask mandate had since been lifted. The court held the employee’s refusal to abide by the employer’s mask policy was a repudiation of his employment agreement and that he had in fact resigned from his job.

Now what does this decision mean for employers and employees?

First in this case the employer had a policy requiring the use of masks. Employers must ensure that their policies are clear and unambiguous if they want to enforce them. Employers should also refrain from a one-size-fits-all approach, as every situation will be assessed based on its own particular facts.

Second, the employee did not provide sufficient proof of a medical exemption. Where an employee can show that they do have a legitimate exemption and that they have a legitimate need that must be accommodated, the situation would likely be different. The employer would have to consider accommodation options and see if they can accommodate the employee up to the point of undue hardship which is a high threshold to meet.

Finally, we have been helping many of our employer clients prepare and implement effective policies in the workplace and can help you do the same. That way you can strategically manage your workplace while reducing potential liability. We can also assist you during the accommodation process.

And if you’re an employee, we can help you understand your rights and represent you to enforce such rights.

If you have any questions or would like to understand more about how we can help you, please check out our website at and contact us.

That’s all for today, thanks for tuning in.

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