With the recent nationwide rollout of Covid-19 vaccination in Australia it is important to know where the current guidelines stand on vaccinations in the workplace. Employers are now tackling the question of whether or not they can implement mandatory vaccination policies in the workplace. In this article we will canvass the recent updated guidance on vaccinations in the workplace and discuss some of the legal issues that may arise.
The Fair Work Ombudsman guidance states that the “overwhelming majority” of employers do not have power to force their employees to vaccinate against Covid-19. Whilst the vaccination program is voluntary, the government still recommends that individuals ensure they are vaccinated against Covid-19 to protect both themselves and others. Mr Christian Porter said:
“As the Prime Minister has said many times, the Government expects that the overwhelming majority of Australians will want to be vaccinated to protect themselves and their loved ones, and so they can get on with their lives without disruption.”
The vaccination guidance which can be accessed below are intended to be comprehensive. Employers that are unsure about their obligations after consulting the guidance materials are urged to seek independent legal advice.
The guidance does outline certain limited instances in which an employer may require an employee to be vaccinated. These limited circumstances will be dependent on the facts of the relationship, including:
- The existence of a state or federal public health law requiring the vaccination of an employee (none currently exist);
- The inclusion of a provision requiring vaccinations in an employee’s enterprise agreement or employment contract; and
- Whether it is lawful and reasonable to direct an employee to receive the vaccination which effects the inherent requirements of the position (which is assessed on a case by case basis).
Lawful and Reasonable
Employers can direct their employees to be vaccinated provided the direction is lawful and reasonable. However, the Guidance states that, on its own, the coronavirus pandemic does not make it reasonable for an employer to direct their employees to be vaccinated against COVID-19. Instead, whether a direction is lawful and reasonable has to be assessed on a case by case basis having regard to the inherent requirements of the position.
Work Health and Safety
Employers have a work health and safety obligation to provide a safe working environment, and employees have an obligation to assist their employer to provide that safe working environment. Employers also generally have a duty under model WHS laws to minimise, so far as is reasonably practicable, the risk of exposure to COVID-19 in the workplace.
It is clear from the Guidance that employers must exercise due caution in their treatment of employees who refuse to be vaccinated. For example, if an employee refuses to be vaccinated and is treated adversely by their employer as a result, the employer may be exposed to a claim by the employee under anti-discrimination legislation or adverse action under the Fair Work Act 2009 (Cth).
Work health and safety (WHS) considerations are an important factor to consider in working out whether a direction is reasonable. Industry-specific COVID-19 WHS guidance has been provided by Safe Work Australia on issues regarding vaccinations (SWA guidance).
Case Law – Mandatory Vaccination
The Fair Work Commission (the Commission) has dealt with a recent case concerning the influenza vaccine.
In Arnold v Goodstart Early Learning Limited  FWC 6083, the employer, a childcare centre, required employees to be vaccinated against influenza unless they had a health or medical reason which would justify an exemption. The employee objected to being vaccinated, but not on health or medical grounds. Deputy President Asbury said the childcare centre’s policy was:
“… necessary to ensure that [the employer] 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 employee [Ms Arnold] 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…”
It appears that in some circumstances the Commission will accept there is an arguable case for mandating vaccinations, and any objections raised by employees must be balanced against any overriding safety considerations.
Similar issues will be canvassed by the Fair Work Commission when it hears the unfair dismissal case of Glover v Ozcare in the coming weeks. This case involves a 64-year-old aged care assistant who regularly declined flu vaccinations for over 10 years because of anaphylaxis, which was accepted by her employer. Her employer then mandated compulsory flu vaccines, which the employee refused on medical grounds, and she was dismissed. The Commission will determine whether or not her refusal to get vaccinated was a valid reason for dismissal. In a preliminary ruling, the Commission has made it clear that the reasonableness of the requirement will depend on the person’s role and the workplace, the risk posed to others, and whether measures are available to counter that risk.
It is likely that instances of employer’s attempting to enforce mandatory covid-19 vaccinations will come before the Fair Work Commission in the coming months as the vaccination is rolled out nationwide.
If you have any questions about your obligations with respect to the Covid-19 vaccinations from either an employer and/or employee standpoint please do not hesitate to ask Nick Stevens, Luke Maroney or Daphne Klianis.