On 7 January, Prime Minister Scott Morrison announced Australia’s COVID-19 Vaccine National Rollout Strategy. With the strategy set to be implemented next month, many workplaces are contemplating the possibility of mandating vaccines for employees – but can an employer require their employees to be vaccinated?
What is the test?
- Employees are required to comply with the reasonable and lawful directions of their employer.
- Examples of directions which the Courts have considered to be lawful and reasonable include directions to: participate in workplace investigations, undertake medical examinations to assess fitness for work, staying away from work to prevent spread of illness, and more recently for employees to complete COVID-19 surveys. While such situation has not been tested by the Fair Work Commission, the question of whether a direction to have a mandatory COVID-19 vaccine is reasonable and lawful will depend on all the circumstances of the case including the type of work undertaken, the risks to the health and safety in the workplace, whether there are reasonable alternative measures that could be put in place and the reasons for employee’s objection to the direction.
Recent Claims in the Fair Work Commission
There have not been any cases that have considered whether a direction that an employee have a COVID-19 vaccination was lawful and reasonable. However, in November 2020, the FWC considered the case of Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning (‘the Arnold Case’). In this case, Ms Arnold made an application for unfair dismissal against her ex-employer after being terminated for refusing a mandatory flu vaccine. Goodstart Early Learning had introduced the free mandatory vaccinations with exemptions available on medical grounds. Ms Arnold was dismissed after refusing the vaccine for no apparent medical reasons.
As the application was filed out of time, the matter was dismissed. However, Deputy President Asbury noted the following:
“While I do not go so far as to say that the Applicant’s case lacks merit, it is my view that it is at least equally arguable that the Respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason. Prima facie the Respondent’s policy is necessary to ensure that it meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/or medical conditions. It is also equally arguable that the Applicant has unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position, which involves the provision of care to young children and infants.’
These remarks pose two considerations which will be pertinent in determining the legality of making COVID-19 vaccinations mandatory. Firstly, the type of work being undertaken, and secondly, the reason for the employee’s objection to the vaccine. Due to the seriousness and high infection rate of the virus it is likely that workplaces dealing with ‘at risk’ individuals will have a strong legal standing to make the vaccine mandatory. This may include aged care and disability care staff, quarantine and border workers, defence and emergency services and anyone who may come into contact with individuals considered ‘at risk’ in their line of work.
This is largely due to the fact employers have a legislative duty to ensure that they maintain a working environment that is safe and without risk to health. Likewise, employees owe a duty to their employers to take reasonable care for their own health and safety, and the health and safety of those who may be effected by their acts or omissions within the workplace. It may therefore be necessary for employers to implement mandatory vaccination programs to protect the health and safety of all those attending the workplace.
In consideration of this, it may be that in certain industries, refusing to comply with a direction to be vaccinated against COVID-19 without a medical exemption may potentially be a valid reason for employers to take further action.
What About Discrimination?
The general protections provisions of the Fair Work Act 2009 (Cth) and State and Federal discrimination legislation prohibit discrimination against employees on the basis of political opinion and religion. With the rise in ‘anti-vaxxer’ views in the last decade, it is likely that we will soon see a test case involving an employee arguing that their views regarding vaccination fall under a protected ground of discrimination. In any event, as mentioned by Deputy President Asbury in the Arnold Case, some employment positions may have inherent requirements. For example, it may be a genuine and reasonable requirement to be vaccinated while working as an aged care worker, to prevent the spread of disease and potential death. Such requirements would raise an exception if discrimination action is taken.
Guidance for Employers
Employers who are considering directing their employees to have mandatory COVID-19 vaccinations should:
- Seek advice from a specialist employment lawyer regarding the reasonableness of this type of direction in the context of their particular industry;
- Draft a vaccination policy;
- Provide employees with information on the benefits and risks of the COVID-19 vaccination;
- Address the workplace measures that have been taken to reduce the health and safety risks of COVID-19;
- Prepare a process for managing vaccine refusal including any possible disciplinary consequences;
- Identify any employees who object to vaccination and request specifics of the reason for each employee’s refusal; and
- Consider the steps to be taken to protect those who are medically exempt from receiving the vaccine.
If you require assistance in relation to any of the information provided above, Pragma’s specialist employment lawyers can provide advice to you and your business to minimise your future risk. Contact us today by clicking here or call us on (08) 6188 3340.