09 June 2021

No jab, no job, no problem? Not quite.

Vaccines and mandatory vaccination programs have received a lot of media attention lately. There’s been Australia’s roll-out of the Astra Zeneca COVID-19 vaccine (see here for government information). Alliance Airlines announced that COVID vaccination was mandatory for all staff members (see here). There has also been a slew of reports of misinformation related to vaccines (remember the Bill Gates tracking microchip theory?). Vaccines have been front and centre of media bulletins for months now.

But can an employer actually require employees to be vaccinated?

Three recent decisions have been handed down by the Fair Work Commission regarding employees’ failure to receive a mandatory influenza vaccination in three different employment settings.

In early childhood education

Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156 concerned an early childcare educator dismissed after she refused to receive a flu vaccination for four months. 

A mandatory vaccination policy was implemented after her employer considered influenza risks to both children attending the centre and other employees.

The employee claimed the mandatory vaccination requirement was akin to ‘assault and battery’. She went on to assert that she should be exempt from the vaccination requirement as she had a ‘sensitive immune system’ yet provided no supporting medical evidence.

The employer’s vaccination requirement was held to be a lawful and reasonable direction. The employee’s failure to comply justified her termination. Deputy President Lake observed that:

… the Employer 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.

The policy was a reasonable one and the Applicant chose not to comply. No medical exemption was substantiated and accordingly, the Applicant’s employment came to an end. I am not satisfied that is unfair. …

In aged care

After the recent Royal Commission, aged care is a recognised high risk setting. Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818 concerned an aged care receptionist who refused influenza vaccination on the basis of a past allergic reaction. Her medical evidence was dated some 10 months after her alleged allergic reaction and did not detail the contraindications experienced by her.

At the time of the employee’s refusal, a Public Health Order (PHO) was also in place. The PHO prevented anyone who did not have an up-to-date influenza vaccination from entering an aged care facility. As such, the employee could not lawfully enter her workplace and could not fulfil the inherent requirements of her role.

Home care assistance

Finally, the Commission gave its strongest endorsement in favour of vaccination yet in the most recent decision of Glover v Ozcare [2021] FWC 2989. A home care assistant, Ms Glover, was dismissed for her vaccination refusal.

The employer introduced a policy requiring mandatory immunization for all client facing roles from 1 May 2020 and did not permit any exemptions for medical issues such as contraindications to previous vaccinations. Ms Glover refused to receive the vaccination as she had claimed she previously suffered from an ‘adverse reaction’ to the influenza vaccination. No evidence supporting this position was provided.

Ultimately, Commissioner Hunt found that not only was the introduction of the ‘no exemption’ immunisation policy was not unlawful’ but requiring vaccination for client facing employees was a ‘lawful requirement for continued employment’. Significantly, Commissioner Hunt also found that the implementation of the immunisation policy was a valid exercise of managerial prerogative, especially given the ‘the vulnerability and age of the clients cared for by Ozcare and its employees in community care.

It’s not carte-blanche for employers

These recent decisions support the position that an employer can lawfully require employees to receive specific vaccinations, such as for seasonal influenza strains. 

However, these decisions do not suggest that employers have free reign when requiring employees to receive any vaccination. 

All three of the employees in question were in direct contact with vulnerable members of the community - young children, aged care residents and multiple people requiring home care. The vulnerable nature of these clients placed increased emphasis on the need for employees to be vaccinated against influenza.

It remains unlikely that a blanket vaccination requirement for non-client-facing roles would survive similar tests. Commissioner Hunt stated in Glover that:

Ms Glover’s role was not that of a widget maker in a widget factory where her status as an unvaccinated employee might not matter. In that scenario, it might be lawful for a widget factory employer to mandate influenza vaccinations for widget makers where no such government directive had been made; however, it might not be or is not likely to be reasonable in all of the circumstances.

Similarly, all of the above cases involved applicants who had not provided sufficient medical evidence of recent contraindication. If an employee were to provide such evidence, an employer would have to think twice about termination. Work health and safety issues would arise, along with concerns about whether such a direction is really lawful and reasonable. At the same time, the employer in such a situation would have to carefully balance the goals of the immunization policy, along with any applicable public health or legislative considerations, and possibly consider alternative duties.

In short, each case turns on its own facts.

COVID-19 vaccinations

It remains to be seen how this will play out with COVID-19 vaccinations. Some employers have already stated that they will require front-line employees to receive the vaccination when it becomes available. For example, Victoria has already introduced a ‘no jab, no job’ policy for public sector front line aged care staff (see media coverage here). Some studies indicate that there is support for mandatory vaccination in certain roles (see Australian Institute study here).

However, given the health concerns associated with the Astra Zeneca vaccine, employers should expect some level of reluctancy from some employees. If your company is implementing a vaccination policy, engage with employees, listen to their concerns and consider the evidence provided but don’t shy away from requiring vaccination.

Tips for employers

Before dismissing an employee for a failure to receive a vaccination, employers should:

  • ensure that vaccination is reasonably required for the particular position and role. For example, do employees come into contact with vulnerable people while performing their duties?

  • actively engage with employees, explain why the vaccination is required and provide sufficient time for employees to consider the requirement and obtain medical opinions if needed (especially for COVID-19 vaccinations).

  • provide employees with sufficient time to obtain the vaccination themselves or (ideally) arrange for vaccination to occur at the workplace free of charge.

  • carefully consider any and all medical evidence ‘supporting’ a refusal to vaccinate. Employers should not be afraid to test the evidence provided and request further information if necessary.

If you have concerns about vaccination requirements or want some assistance implementing a vaccination policy, feel free to reach out and give us a call.

Authors: Darren Gardner & Jade Bond