Article by Steven Reynolds, Associate and Dianne Hollyoak, Director
As the COVID-19 vaccines in Australia are becoming increasingly available to the working population, employers are looking for guidance on the controversial question: can employers direct their employees to get vaccinated?
Previously, it was unclear whether an employer could direct their employees to get vaccinated as this issue was never tested in Court, as a previous article written by Luis Izzo highlights. However, three recent decisions from the Fair Work Commission have ruled that employers can direct employees to be vaccinated, provided it is safe for the employee to do so.
Although all three decisions relate to the influenza vaccines, these decisions provide an indication on how the courts may treat matters that come before them considering the current COVID-19 vaccine rollout.
Barber V Goodstart Early Learning
Ms Bou-Jamie Barber was employed as a Lead Educator at an early childcare centre, Goodstart Early Learning (Goodstart). In April 2020, Goodstart introduced an immunisation policy, requiring all staff to receive an influenza vaccine unless they had a medical condition which made it unsafe to do so.
Ms Barber disclosed to Goodstart that she had various autoimmune diseases which made it unsafe for her to take the vaccine. In accordance with its policy, Goodstart requested Ms Barber to provide medical evidence from her General Practitioner that her condition made it unsafe for her to be vaccinated. However, Ms Barber was unable to produce sufficient medical evidence, and was unable to be granted a medical exemption from Goodstart. Ms Barber’s employment was terminated on 13 August 2020 due to not meeting the inherent requirement of her role to be vaccinated against influenza.
Deputy President Lake found that Goodstart could not create an inherent requirement of a role by creating mandatory vaccination or work health and safety policies that made employment contingent on complying with these policies.
However, Deputy President Lake found that Ms Barber failed to follow a lawful and reasonable direction, which gave a proper basis for termination. The direction was lawful and reasonable for a number of reasons, such as Goodstart’s duty of care it owed to staff and clients; the efficacy in the vaccine in preventing infection; the opportunity for employees to seek exemptions; procedural fairness; and the assurance of informed consent.
Kimber V Sapphire Coast Community Aged Care Ltd
Ms Kimber was a receptionist for a community owned not for profit aged care group called Sapphire Coast Community Aged Care (Sapphire Coast).
On 24 March 2020, the New South Wales government issued a public health order requiring mandatory flu vaccinations for persons who worked within or attended aged care facilities in New South Wales, allowing aged care facilities to comply with the order by 1 May 2020.
As a result of the public health order, Sapphire Coast advised staff that the annual flu shot was compulsory for all staff. Ms Kimber refused to have the flu shot, claiming she suffered an adverse reaction in 2016. However, Ms Kimber was unable to provide sufficient medical evidence to support that it was unsafe for her to have the flu vaccine. As such, Ms Kimber’s employment was terminated for failing to comply with a lawful and reasonable direction to have the flu shot.
Although Sapphire Coast never issued a lawful and reasonable direction to staff, and merely notified them of the public health order requirement and the compulsory vaccination policy, Commissioner McKenna was satisfied that the dismissal was made on the grounds of medical incapacity because the public health order in place did not allow Ms Kimber to attend the workplace without a vaccination and as such, she could not perform the inherent requirements of her role.
Glover V Ozcare
Ms Glover was a 64-year-old community care assistant employed by Ozcare, a community care provider. Ms Glover had been told that she suffered an adverse reaction from a flu vaccine as a child, but could not provide medical evidence to support this claim.
On 20 April 2020, Ms Glover was informed by Ozcare that she would not be rostered or allowed to enter the workplace for an unspecified amount of time, stating that it was an inherent requirement of her role to be immunised annually against influenza.
After Ms Glover’s annual and long service leave ran out on 4 October 2020, she was advised by Ozcare that she would not be rostered on any shift. Although Ozcare claimed that her employment had not been terminated, Commissioner Hunt found that Ozcare’s actions amounted to a termination with effect from 4 October 2020.
Although Ms Glover argued it was not reasonable for Ozcare to introduce a policy that went above and beyond the direction issued in respect of the aged care sector, given that she worked in community care, Commissioner Hunt found that Ms Glover was in a profession where her status as an unvaccinated employee mattered.
The reason for the dismissal was found to be genuine and valid regarding Ms Glover’s capacity and Ozcare’s operational requirements and the case was dismissed. However, Commissioner Hunt made it clear that just because it is lawful for certain industries to mandate flu vaccinations where no government directive has been made, does not mean the direction is automatically reasonable.
What does this mean for your business?
Employers are permitted to issue a direction to their employees to be vaccinated, whether that be in respect of influenza or more topically, in respect of COVID-19.
Whether a direction to be vaccinated will be both lawful and reasonable and be able to form a sufficient basis for termination on non-compliance, will vary across industries, professions and groups of employees.
If there is a public health order in place which requires mandatory vaccinations, an employer’s ability to issue a lawful and reasonable direction becomes clearer. However, only a handful of specific industries will ever be covered by such an order. Even if an employer is subject to a mandatory vaccination public health order, there is no such thing as automatic grounds for dismissal. Providing procedural fairness will remain important to ensure that any dismissal is fair.
If intending on issuing a direction for your employees to be vaccinated, we recommend implementing a clear vaccine and immunisation policy which outlines what is required of employees, the need for informed consent and a fair process for employees to raise any concerns, objections or seek exemptions from the policy. As part of this process, we recommend you engage in consultation with the workforce and make it clear that it is a lawful and reasonable direction to comply with same, unless the employee can provide a reasonable excuse for not doing so, such as providing sufficient and current medical evidence.
Employers may consider not only including punitive measures when drafting a vaccine and immunisation policy, but also incentivising employees to be vaccinated. Examples of incentives can be in the form of a bonus to those employees who become vaccinated or employees go into a draw for a prize. However, employers will need to consider eligibility to any incentive if certain employees are unable to be vaccinated due to medical reasons.
With increasing media attention as to the side effects of Pfizer and AstraZeneca, employers need to be particularly mindful that some employees may have a heightened risk of developing side effects, which places their health and safety at risk. This risk needs to be managed against the risk of not being ‘vaccinated’ for COVID-19 and the risk that places your staff, clients and customers.
Employers also need to be aware that in the event they do make it compulsory for employees to be vaccinated, they will need to be supportive of employees if they do experience side effects and in rare cases where employees develop an illness as a result of the vaccination. Employers may be held liable for having caused the illness, therefore liable for workers compensation benefits.
If this article has raised any questions for your business, get in touch at firstname.lastname@example.org