Direction to Vaccinate
By Natalie Todd, Principal Workforce Advisor, Peak Legal
With the roll-out of AstraZeneca and Pfizer vaccinations for COVID 19 Australia-wide, the question regarding whether an employer can require workers to receive vaccinations is in the spotlight. There have been several recent cases heard by the Fair Work Commission that have shed some light on the principles likely to be applied by the Commission in determining whether vaccination is an inherent requirement of an employee’s position and if termination of employment for refusing to get vaccinated is fair, just and reasonable in the circumstances.
The decisions in the cases of Maria Corazon Glover v Ozcare  FWC 2989 (26 May 2021), Jennifer Kimber v Sapphire Coast Community Aged Care Ltd  FWC 1818 (29 April 2021) and Ms Bou-Jamie Barber v Goodstart Early Learning  FWC 2156 (20 April 2021), have given employers operating in high-risk environments, such as aged and child care, further confidence that they can direct employees to receive vaccinations, in certain circumstances. In hearing these cases the following guiding principles were considered by the Commission:
Nature of the Workplace or Position
In order to require an employee to be vaccinated, it would need to be established that there is a serious health and safety risk to the employee or others, should the employee not be vaccinated. In the Ozcare case, where the employer directed an employee to receive an influenza vaccination and later terminated the employee for the failure to do so, Commissioner Hunt accepted evidence from Ozcare that its community-care employees could potentially become influenza "super-spreaders", noting that it would be a "comfort" to the employer if it could declare all its client-facing employees were vaccinated, in the event of any litigation.
Commissioner Hunt stated, "Ozcare has determined, and I accept, that this is a decision the business considered necessary to take to safeguard its clients and employees as far as it is practicable to do so."
In the Goodstart case, the Deputy President noted that the organisation revolves around caring for children with generally poor hygiene and that its adoption of a mandatory influenza vaccination policy, after consultation and consideration of alternatives, was not unreasonable. The Deputy President determined that Goodstart’s policy was “necessary to ensure that it meets its duty of care with respect to the children…balancing the needs of its employees”.
It is noted that the Deputy President found it ‘difficult to accept’ that the employee was unable to perform the inherent requirement of her position, due to her failure to get an influenza vaccination, in the circumstances where she had done so for many years. However, the Deputy President did accept that the employee’s failure to follow a reasonable and lawful direction was an appropriate reason for termination of her employment.
The employer, in requiring an employee to be vaccinated, must also give consideration to whether there are any valid medical reasons which would prevent an employee from being vaccinated. If so, the direction may be found to be discriminatory and unlawful.
In the Ozcare case for example, the employee argued that she had experienced symptoms of anaphylaxis when she had received an influenza vaccination in childhood and obtained a medical certificate that certified that she was unable to receive the influenza vaccination. Whilst this was the case, Commissioner Hunt observed that the evidence of her supposed allergy amounted to “no more than informing her general practitioner that she believed she suffered from the condition”, as opposed to it being a medical diagnosis.
Further, in the Goodstart Early Learning case, the Goodstart policy on vaccinations included the ability to be exempted on medical grounds. The employee refused to get immunised on the basis of purported sensitivities and reactions. Despite being provided with access to medical practitioners at the cost of the employer, the employee was unable to obtain medical evidence that exempted her from being vaccinated. In fact, at the employee’s own admission, multiple doctors refused to provide her with such an exemption.
Options to Mitigate the Risk
Commissioner Hunt, in her decision on whether Ozcare’s refusal to give the employee shifts, due to her failure to receive the influenza vaccination, amounted to termination of employment, made observations relating to the availability of alternative risk mitigation strategies. It is important that employers consider the risk of employees not receiving a vaccination and whether these risks can be reasonably mitigated through alternative strategies such as PPE (masks), social distancing, hygiene measures etc.
Whilst these decisions offer guidance, it is important to note that the decisions are restricted to the specifics of each case.
In the instance of COVID vaccinations, it is also important to consider the advice provided on the Safe Work Australia website, which notes measures for managing the risk associated with COVID-19 as far as reasonably practicable and states, “It is unlikely that a requirement to be vaccinated will be reasonably practicable. This is because, for example:
at present, public health experts, such as the Australian Health Protection Principal Committee, have not recommended a vaccine be made mandatory in your industry,
there may not yet be a vaccine available for your workers, or
some of your workers have medical reasons why they cannot be vaccinated.
However, ultimately whether you should require your workers to be vaccinated will depend on the particular circumstances at the time you are undertaking your risk assessment
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