Hysteria or Fact? Mandatory Vaccination in Workplaces
Since the rollout of the COVID-19 vaccine began, there has been considerable discussion surrounding the possible mandating of vaccines in workplaces. Those discussions have had renewed prominence after National Cabinet discussed the issue in early August.
Given the plethora of misinformation circulating about vaccination generally, it is not surprising that conspiracies will also abound regarding the issue of mandatory vaccination. However, at present, there is no indication that mandatory vaccination will become a blanket requirement across all employment scenarios.
Like any other direction an employer gives to an employee, a requirement to be vaccinated will only be valid if it is lawful and reasonable. This question of whether a vaccination requirement will be valid will therefore depend heavily on the particular circumstances of the employment relationship in question. What might be reasonable in one context might be unreasonable in another.
The Fair Work Ombudsman’s official advice at the time of publishing this article is that “the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus”. In other words, employers who can require vaccination will be the exception to the rule.
So, when might an employer be able to mandate vaccination of an employee? The answer depends chiefly on the following:
- Are there any particular safety considerations which apply that make vaccination a reasonable direction? (e.g. increased exposure to COVID-19 cases or vulnerable groups);
- If yes, are there any reasons why a particular employee should be exempt from the requirement (e.g. because they suffer from a relevant medical condition); or
- Is being vaccinated so critical in the particular context that it is an “inherent requirement” of the role and, therefore, the requirement can apply without any exemptions.
Work Health and Safety Obligations
It is widely understood that employers have overarching duties to eliminate risks to health and safety in their workplaces to the extent it is reasonably practicable to do so. Therefore, in some industries, implementing a policy of mandatory vaccination may in fact be required to discharge that obligation.
The Case Law
Currently, if an employee refuses to be vaccinated on the grounds of a protected attribute (e.g. physical disability, pregnancy, religion) and is treated adversely by their employer as a result, they may be able to claim protection under the Fair Work Act 2009 (Cth) . Such claims will need to be considered carefully by employers with reference to expert legal advice and, where applicable, be supported by medical evidence. However, in cases where an employee refuses, without a valid reason, a direction to be vaccinated that is lawful and reasonable, their employer may be justified in terminating their employment. A look at some recent cases is useful here.
Arnold v Goodstart Early Learning is an example of this. This case involved the Fair Work Commission deciding whether to allow an employee to proceed with an unfair dismissal claim that she had filed outside the usual 21-day timeframe. The application was ultimately refused, so no authoritative statements on mandatory vaccination were made, but Deputy President Asbury’s brief consideration of the merits of the claim includes some helpful commentary.
In this case, Ms Arnold was a childcare worker who refused to have a mandatory flu vaccine and was dismissed as a result. Her employer had a policy of requiring flu vaccination because its employees cared for young children and had heightened exposure to illness (as parents of small children will be painfully aware!). However, the employer’s policy allowed employees to seek exemption from the vaccination requirement on medical grounds. In refusing to be vaccinated, Ms Arnold did not have any medical grounds for refusing. In considering the merits of the application, DP Asbury did not think they were strong enough to warrant the claim proceeding despite its late filing. In doing so, he said it was ‘at least arguable’ that Ms Arnold had ‘unreasonably refused to comply with a lawful and reasonable direction which [was] necessary for her to comply with the inherent requirements of her position, which involve[d] the provision of care to young children and infants” .
The case of Maria Corazon Glover v Ozcare raised a similar principle. Ms Glover was a healthcare worker who declined a mandatory flu vaccine due to having had an adverse reaction to an influenza vaccine as child, 57 years earlier. She did not provide any medical evidence to substantiate her claim to still be prone to such reactions. Here, Commissioner Hunt emphasised that the circumstances of someone’s work are important and suggested that an employer could mandate a vaccine without exception on a ‘lawful and reasonable basis’. However In doing so, there would have to be ‘significant regard to the vulnerability and age of clients’.
Therefore, when a worker operates in a position where a standard of care is heightened due to a vulnerability of those in their care, for example, mandatory vaccination may be lawful and justified as a requirement of the role.
However, for less high-risk industries such as trade, corporate and retail, measures that minimise the risk such as the wearing of a mask, regular washing and sanitising of hands, maintenance of social distancing and working from home are likely to be sufficient in order to meet workplace health and safety requirements, without the need for mandatory vaccination.
It is highly unlikely that the vaccine will become mandatory in all industries. For most employers, encouraging employees to take basic control measures such as regular handwashing, maintaining social distancing, encouraging working from home where possible and staying home if unwell are likely adequate measures to ensure workplace health and safety.
However, as suggested in the cases, high-risk industries (like aged care) which work with vulnerable clients may justifiably and lawfully be able to mandate vaccination, even without making provision for lawful exception. In order to do so, these employers must consider the vulnerability, nature of their employee’s roles (e.g. are they client facing), and age of their clients to determine whether the risk is sufficiently heightened enough to lawfully mandate vaccination.
Irrespective of this, the federal government is under increasing pressure to take charge and enact legislation that will protect employers who mandate vaccination. Time will tell if they actually answer those calls or continue leaving this area of law a responsibility that falls on business owners.
Practical Next Steps for Employers:
- You should ensure you are taking steps to ‘minimise COVID-19 risk to health and safety’. More information for employers on how to do so can be found on the Department of Health website.
- If you are considering implementing a mandatory vaccine policy in the workplace in a high-risk industry you should seek expert legal advice to ensure you make adequate provisions that prevent a possible discrimination or unfair dismissal claim.
Author: James Remington
With thanks to Cassie East for her research and assistance in the preparation of this article.