A vaccine mandate and the challenges of change…

Can an employer decide to make an influenza (or COVID-19) vaccination an inherent requirement of the role and if so, is this a lawful and reasonable direction?

 

Protecting the health and safety of clients, colleagues and the community involves change. Individual behaviours often need to change in order to make positive improvements in the community or the workplace.

The challenges that COVID-19 presented in 2020 required substantial changes to individual behaviours. We all had to adopt new behaviours around “social distancing”, isolation processes, face-mask etiquette and correct hand sanitation practices (to name a few!).

In 2021 the challenge of change will be around vaccinations (for both influenza and COVID-19) and the case law is starting to develop in this area.

Childcare Sector

In 2020, childcare provider Goodstart Early Learning Centre decided it would make influenza vaccinations for all employees mandatory and issued a direction to all employees requiring them to be vaccinated by 29 May 2020. The direction provided a process by which employees with medical reasons for not being vaccinated could seek an exemption. Goodstart felt their policy was necessary to meet its duty of care requirements with respect to protecting children they cared for. Exemptions were provided for staff with health or medical conditions.

An employee, Ms Arnold objected to being vaccinated on grounds which did not include a medical or health related issue. Ms Arnold was subsequently dismissed on the basis that she had refused to comply with a lawful and reasonable direction.

Ultimately the case was dismissed on a jurisdictional ground however not before Deputy President Asbury noted the childcare business had a vaccination policy that was:

"…lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason".

Therefore, the Childcare Centre’s policy was:

"… necessary to ensure that it 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…” - Arnold v Goodstart Early Learning Limited [2020] FWC 6083, 18 November 2020 at [32].

Aged Care Sector

In April 2020, Ozcare a residential aged care provider, in an attempt to protect clients and help stop the spread of COVID-19, updated their Employee Immunisation Policy to make influenza vaccinations mandatory for all employees working in residential aged care facilities and all community care services.

For 10 years previously, 64-year-old Care Assistant Ms Maria Glover had declined the annual vaccination due to her suffering anaphylaxis immediately after receiving the influenza vaccine at the age of seven, whilst she was a resident of the Philippines. Over these 10 years, Ozcare permitted her to continue in her role. In April 2020, Ms Glover again refused to be vaccinated.

Ozcare did not permit her to resume work and Commissioner Hunt found her employment was subsequently terminated by Ozcare in October 2020. Glover v Ozcare [2021] FWC 231, 18 January 2021.

Ms Glover refused to seek or provide any medical advice regarding her capacity to safely have the vaccination. The Commission pointed out that it had been 57 years since her last vaccination and there had been considerable medical advancements in that time. When asked if she would consider seeing a medical specialist Ms Glover confirmed she will never have a vaccination as she believes it would be a risk to her life and she was not agreeable to meet with a medical specialist to discuss the matter further.

The matter will now progress to a hearing by the Fair Work Commission on the fairness of the termination.

The question to be determined in 2021 is, can employers mandate a COVID-19 vaccine for their employees?

In light of Australia's impending roll out of a COVID-19 vaccine in March, a major consideration for employers will be whether they can direct their employees to have the vaccine? Alternatively, can employers terminate or restrict their employees from entering the workplace if they refuse to take the vaccine.

If working from home arrangements, social distancing measures and regular cleaning practices cannot manage this risk alone then the vaccination will need to be considered as part of the solution. Whether this can be mandated depends on the specific circumstances of each individual employee.

In the absence of a government or Health Department, directive employers will generally not have an unfettered right to require their employees to be vaccinated against COVID-19.

However, at common law employees have an obligation to comply with the lawful and reasonable directions of their employer. The critical issue for determining whether a direction to receive the vaccine is "lawful and reasonable" will depend on a number of considerations, such as the nature of work that needs to be performed, the nature of clients/customers and other stakeholders, whether employees can work remotely, the local health advice and requirements of the Government at that point in time.

Does industry make a difference?

The possibility of employers being able to enforce a mandatory COVID-19 vaccine for their workplace will also vary depending on the industry that they work in. Obviously, people who work in health or with vulnerable members of the community might be viewed as more of a risk, and so as a result a requirement that they have the vaccine is likely to be considered lawful and reasonable to assist in ensuring their health and safety, and that of others around them, in their workplace. For example, it is already a requirement for people working in aged care facilities to receive the flu vaccination and there has been considerable discussion that this same requirement should apply for the COVID-19 vaccine. There has also been discussion that it should be mandatory for hotel quarantine workers to receive the vaccine due to their exposure to returned travellers.

There is also the possibility that it could be a Government requirement for employees in certain sectors to receive the vaccine. However, the situation is likely to be very different for those workplaces where the risk of infection is low.

Watch this space

With the Morrison Government hoping to administer the vaccination as early as March, this issue is sure to surface in a lot of workplaces. Industrial Relations Minister Christian Porter says that talks will soon start with employers and unions to work through the complex legal and workplace safety issues surrounding the rollout of COVID-19 vaccines.

Porter has said "preliminary discussions" had already begun "with key unions and employers from the health and aged care sectors about a vaccine roll-out and wider consultation with stakeholders from the broader economy will begin soon, with the first meeting scheduled for 1st February…Naturally there are a number of complex legal issues that need to be considered in preparation for the roll-out of a vaccination, some of which will be unique to particular workplaces and it should be noted that the largest area of legal responsibility for workplace safety is fundamentally a state responsibility.”

The Employment group at McCabe Curwood are available to assist employers with this developing area of workplace law and will provide further client updates in the coming weeks ahead.


Want to know more?

Listen to our recent Trial by Podcast episode on the topic: Could your employer make you get the COVID-19 vaccine?

Contributors

Nicola Martin Principal