Day: June 14, 2021

Can Employers Mandate Vaccines?

The rollout of the COVID vaccinations has raised the question of whether the vaccine will be mandatory. This is particularly important in employment where employers may demand that their employees receive the vaccine or face discipline/termination.

Regulatory Position

The Federal Attorney-General released a media statement outlining the Federal Government position on mandatory vaccines.[1] In summary the Government’s position is that vaccines should be voluntary but notes that the health agencies may mandatorily require workers in certain high-risk industries to receive the vaccine.

The statement otherwise defers to the views of the Fair Work Ombudsman (FWO) and Safe Work Australia (SWA) but makes the following general statements:

• the overwhelming majority of employers should assume they will not be able to require their employees to be vaccinated;
• it is unlikely in the majority of circumstances that employees could refuse to come to work because, for instance, a colleague had not been vaccinated.

The FWO notes there are limited circumstances where a vaccine may be mandatory. This is highly dependent upon the particular workplace and each employee’s individual circumstances. Relevant considerations include:[2]

• whether a specific law (such as a state or territory public health law) requires an employee to be vaccinated;
• whether an enterprise agreement, other registered agreement or employment contract includes a provision about requiring vaccinations;
• if no law, agreement or employment contract applies that requires vaccination, whether it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated;
• whether employees have a legitimate reason for not being vaccinated.

SWA also note that it is unlikely that an employer can impose a mandatory vaccine condition except in particular circumstances.[3] SWA states that employers have a duty to eliminate or minimise the risk of exposure to COVID-19 in the workplace as far as reasonably practicable. What is reasonably practicable will depend on the operative needs of the business. To determine these operative needs the following should be considered:

• Is there a health agency requirement or recommendation for the industry requiring vaccine;
• The risk of exposure in the course of work (e.g., whether workers face customers, work in close proximity, etc.);
• Whether the business serves or works with high risk/vulnerable people;
• What control measures can be put in place.

Lawful Direction

As noted by the FWO, in certain circumstances an employer may legitimately give employees a direction to obtain the vaccine. The key requirements for a direction to be effective is that it must be reasonable and lawful. A direction by the employer is not necessarily limited to the scope of an employment agreement, rather it may encompass all matters connected with the job performed by an employee and any related.[4]

For a direction to be lawful it must not violate State/Territory or Commonwealth law or require the employee to violate any law. Whether a direction is reasonable will depend on the circumstances of the case such as:

• The operational requirements of the business;
• The usual operational practices of the business;
• The terms of any employment agreement;
• The nature of the employees work;
• The relevant qualifications, ability or skillset of the employee;
• The risks (if any) to the health or safety of the employee or other workers;
• The relevance of the direction to any of the above.[5]

Where a decision of an employer is based upon medical considerations, it should be shown that relevant medical evidence such as an expert report has been considered.[6] If the employee unreasonably refuses to provide evidence or attend medical examinations, this may be grounds for discipline or termination.[7]

The final consideration before issuing a direction or implementing a policy is employee consultation. Before making any direction or implementing policy, it is vital to properly consult with the employees.[8] A failure to consult may result in an employer becoming liable to various remedies including compensation. Employers should discuss potential alternative arrangements with employees before imposing any new conditions.

Case Law

There have been two decisions in relation to mandatory vaccine policies. Both cases involved workers challenging the policies implemented by their employers. Both cases were unsuccessful.

The first case, Barber v Goodstart Early Learning [2021] FWC 2156 concerned an educator at an early learning centre. Goodstart introduced an immunisation policy, requiring that all staff must receive the influenza vaccination unless they have a medical condition which makes it unsafe for them to do so. The employee claimed that she had a sensitive immune system and objected to the policy, providing a medical certificate in support of her claim. Goodstart determined that the medical certificate was not sufficient to support the objection and the employee was terminated for failing to be vaccinated and meet the inherent requirements of her role.

Deputy President Lake upheld the dismissal considering that Goodstart had given a lawful and reasonable direction to its employees. The basis for this finding was that: health bodies recommended flu vaccinations for people working with children, flu symptoms could be severe especially in children, flu vaccinations are effective at reducing the risk of infection to children and staff, alternative methods of managing risk, like social distancing, are not always available to childcare workers, and unions were supportive of Goodstart implementing the policy.

The Deputy President rejected the employee’s medical exemption argument. In assessing the medical evidence provided, the Deputy President considered that there was not evidence that the vaccine would pose significant health risk to the employee, the only evidence was vague statements relating to the employee having a sensitive gut that could be aggravated by the vaccination.

The second case, Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818 concerned a receptionist in a residential aged care facility. The employer (Sapphire) introduced a compulsory flu vaccination for all employees in response to a New South Wales Public Health Order which prevented persons from entering aged care facilities without an up-to-date flu vaccination. The employee argued against receiving the vaccine claiming that she had previously had a severe reaction to the vaccine some years earlier. In support of her claim, she produced a letter from a Chinese medical practitioner stating she "would prefer not to have the flu vaccination" and had been prescribed antiviral and immune boosting herbs.

The employee was dismissed with Sapphire acting on government approved advice that the only absolute contraindication to flu vaccination was a history of post-vaccination anaphylaxis, Guillain-Barr syndrome, or use of certain cancer treatment drugs.

Commissioner McKenna upheld the dismissal again finding the employer had issued a legal and reasonable direction against the context of the NSW Health Order. The Commissioner held that the employee was not able to produce evidence that here severe symptoms were a direct result of the vaccine or that the symptoms would be repeated if she received the vaccine. The Commissioner concluded that Sapphire had acted in an "objectively prudent and reasonable way" and that by refusing to receive the vaccine, the employee could not perform the inherent requirements of her job.

Both decisions were noted to be highly specific to the individual facts. Deputy President Lake also noted that his decision should not even be taken to apply to all employees of Goodstart as “…  the role each employee performs in fulfilling [the business’s] undertaking may differ.”

Against this context employers should be cautious in implementing mandatory vaccine policies or dismissing employees for failing to obtain any vaccine.

Discrimination

As noted, a direction will only be lawful to the extent that it does not violate or require a violation of a law. In this respect the primary point of concern is whether the direction would be discriminatory. Discrimination can arise both directly and indirectly.

The Fair Work Act 2009 prohibits discrimination by employers, on 13 different attributes, against employees and potential employees. These are referred to as the ‘protected groups’. Section 351 provides that, subject to exceptions:

• An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

This protection is supplemented by the various anti-discrimination legislation at the State/Territory or Commonwealth level.

Some exemptions apply to anti-discrimination law, namely ‘reasonableness’, ‘genuine occupational qualification’ and ‘inherent requirement’. These exceptions do not apply to all anti-discrimination legislation and do not apply in all circumstances.

Summary and Practical Considerations

In summary, at this time there is not any specific law at the State or Federal level that makes vaccination mandatory. Employers may be able to give their employees a direction to be vaccinated, however this will be highly dependent upon a number of factors weighed against each other. These factors will include:

• The operative needs of the business;
• What infection control measures can and can’t be put in place;
• Vulnerability of workers and/or visitors/customers;
• Practicality of alternative arrangements;
• Specific medial needs of employees;
• Overall safety of the workplace and workers;
• Compliance with relevant laws.

In the case of requiring a vaccine, it will need to be demonstrated that a mandatory vaccine policy/direction is reasonable to protecting the interests of all stakeholders. It will therefore be necessary to show that the vaccine is a necessary control for the purpose of complying with WHS obligations and protecting members of the workplace.

For employees disputing receipt of the vaccine, you must at least be able to produce medical evidence demonstrating that the vaccine will have an appreciable negative impact on your own health. It is not sufficient that the vaccine may cause discomfort or non-detrimental health complications.

[1] https://www.attorneygeneral.gov.au/media/media-releases/guidance-released-vaccine-rollout-australian-workplaces-19-february-2021

[2] https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/health-and-safety-in-the-workplace-during-coronavirus/covid-19-vaccinations-and-the-workplace

[3] https://www.safeworkaustralia.gov.au/covid-19-information-workplaces/industry-information/general-industry-information/vaccination

[4] Woolworths Ltd v Brown (2005) 145 IR 285 at 293–297; Horan v North Coast Tavern Pty Ltd t/as North Shore Tavern [2011] FWA 3035 at [43]

[5] Jeremy Lee v Superior Wood Pty Ltd [2019] FWCFB 2946.

[6] CSL Ltd (t/as CSL Behring) v Papaioannou [2018] FWCFB 1005; Lion Dairy & Drinks Milk Ltd v Norman [2016] FWCFB 4218 at [34].

[7] Hudson v RMIT University [2020] FWC 4289; Burns v Sacred Heart Mission Inc [2014] FWC 3188.

[8] Michelle Sposito v Maori Chief Hotel [2021] FWC 700.

by James Conomos Lawyers