Job if you do, no job if you don’t
The topic of mandatory vaccination has become prominent in recent times due to COVID-19. As a result, the question of an employer’s ability to require employees to be vaccinated has been asked more frequently than ever before. So, can an employer make an employee get a vaccination?
Over the previous few months, the Fair Work Commission has determined three notable cases involving the dismissal of employees due to their refusal to obtain a flu vaccination. The Commission found that the dismissals in each of these cases were not harsh, unjust or unreasonable, but for very different reasons in each case.
Mandatory Government Directions
It is a straight-forward matter if there is a government requirement that certain workers be vaccinated.
Ms Kimber performed general receptionist and clerical-type duties at Sapphire Coast Community Aged Care (Sapphire Coast).
On 24 March 2020, the NSW government mandated via a Public Health Order (PHO) that persons who do not have an up-to-date vaccination against influenza must not enter a residential aged care facility unless provided with an exemption from the Health Minister. In light of this PHO, Sapphire Coast reiterated to its employees that it was mandatory to obtain an up-to-date influenza vaccination.
Ms Kimber, who alleged that she developed a condition, which included skin inflammation as a result of a past influenza vaccination refused to be vaccinated again in 2020 but also did not provide any medical exemption. This alleged reaction to a previous influenza vaccine was never medically examined. Due to her refusal to be vaccinated, she was stood down and subsequently dismissed from her employment on the grounds that she was no longer able to perform the inherent requirement of her role as she was not permitted to enter the aged care facility without a vaccination.
This case demonstrates that the lawfulness and reasonableness of an employer’s direction to be vaccinated is further justified if it is in compliance with government orders. While each employee is entitled to make a personal decision as to whether to obtain a flu shot, the Commission recognised that employers have an obligation to ensure compliance with a mandatory government direction.
What if there is no Public Health Order or similar government-issued direction for certain persons to be vaccinated?
Ms Barber was employed as a childcare worker by Goodstart Early Learning (Goodstart).
In April 2020, Goodstart voluntarily implemented a policy requiring all staff to receive the flu vaccination unless they had a medical condition which made it unsafe for them to do so.
Ms Barber refused to be immunised, citing that she had a “sensitive immune system” and provided a medical certificate to that effect. Goodstart did not consider that the medical certificate was sufficient to support her objection to the immunisation. After failing to provide better medical evidence in support of her objection, Ms Barber’s employment was terminated.
The Commission recognised that in implementing this vaccination policy, Goodstart had made a “logical and legal analysis of the risks and hazards in the workplace, developed a response and implemented a policy to target that risk” but also cautioned that this determination was made in a specific context of a highly particular industry.
A takeaway from this case is that the lawfulness and reasonableness of a direction to obtain a vaccination is justified further if the employment is in a particular industry, such as those where employees are required to work face to face with vulnerable members of society.
Ms Glover was employed by Ozcare in the role of a care assistant, which required her to work in close proximity with elderly clients.
In April 2020, Ozcare amended its workplace employee immunisation policy to mandate that employees receive the influenza vaccination and did not allow for any medical exemptions. These amendments were in response to Aged Care Directions issued by Queensland's Chief Health Officer relating to residential aged care facilities.
Ms Glover refused to undertake the vaccine because she had experienced an anaphylactic reaction to the influenza vaccination as a child. Her employment was subsequently terminated as a result of her refusal to be vaccinated.
Although not in residential aged care facilities, Ozcare’s home-care clients were vulnerable members of society and clients were cancelling Ozcare’s services in fear that their workers would bring any virus into their homes. The Fair Work Commission found that Ozcare’s immunisation policy was reasonable given the “vulnerability and age of the clients cared for by Ozcare and its employees in community care” and recognised that Ozcare exercised its “managerial prerogative” to ensure the safety of its clients and staff, by mandating vaccination.
The designation of an employee was also a consideration in this case. The Fair Work Commission noted that Ms Glover worked in a client-facing role, distinguishing this from a ‘widget maker’ in a ‘widget factory’. This consideration weighed in favour of requiring Ms Glover in her designation to be vaccinated.
What we can expect to see
As Australian employers adopt measures to adapt to these unusual times, the law is slowly developing to take into account the evolving society we live in. The above cases indicate an inclination to allow employers to exercise some discretion to act as they deem necessary to battle against an infectious virus, in a bid to ensure the health and safety of staff and clients.
With the recent announcement by Prime Minister Scott Morrison regarding mandatory COVID-19 vaccinations for all residential aged care employees, it is not surprising if it eventually becomes commonplace for employers to require proof of vaccinations as part of the employment screening process or require an employee to obtain regular vaccinations as part of their job description.