No Jab, No Work – Can Employers Lawfully Request That Their Employees Get Vaccinated In Australia?

4 February 2021
 

Is it reasonable and lawful to direct employees to vaccinate against coronavirus?
 

While the Australian Government has announced that the coronavirus vaccine will not be made mandatory in Australia – this raises a number of questions for employers:
 

• What does this mean for Australian employers' primary duty to provide their employees a safe working environment?
   

• How do employers weigh up this duty with their employee's right to choose not to vaccinate?
   

• Is requesting an employee to vaccinate against the coronavirus a lawful direction?
   

• Can an employer terminate an employee for failing to vaccinate?
   

The answers will depend on the circumstances surrounding the employment and context of the employment of each employee.  
 

For example, where employees work in an office environment, when compared to employees who work in a high risk workplace such as a hospital, those employers are likely to face greater difficulty in demonstrating the reasonableness of a direction to vaccinate, where there are generally much lower risks of an outbreak. In this instance, employers could instead put in place a number of accommodating measures to reduce the spread of coronavirus such as social distancing.
 

Additionally, there are already authorities which suggest that certain exemptions will apply to employees who have a valid medical reason to not get vaccinated where certain accommodations by the employer will need to be made.
 

In this article we set out a number of considerations employers will need to contemplatebefore determining whether they can enforce a mandatory vaccination policy for the coronavirus.
 

The New South Wales Government's position
 

Employers operating in certain industries in New South Wales may have a much stronger basis to enforce mandatory coronavirus vaccinations for their employees should Ms Berejiklian's considerations come to fruition.
 

Currently, Ms Berejiklian is considering the following measures to incentivise vaccination against coronavirus, including:
 

• requiring all residents to be vaccinated and provide proof of vaccination before they can enter their local restaurant, pub and/or bar – in order to protect public health;
   

• giving businesses permission to make vaccination a condition of entry;
   

• whether the Service NSW app can be used by people to prove they have received the vaccine;
   

• requiring people required to travel to New South Wales to be vaccinated;
   

• introduction of proof of vaccination as a border entry or re-entry requirement; and
   

• requiring vaccination in order to access government buildings.
   

The Fair Work Commission's position on mandatory vaccinations in the workplace
 

Importantly the Fair Work Commission (the Commission) has already considered an employers' mandatory vaccination policy against influenza in the context of providing care in the aged care industry, and a childcare centre.
 

In those cases the Commission set out some of the considerations the courts may apply regarding employer's directions to its employees to get the coronavirus vaccine and whether failure to do so, is a valid reason for dismissal.
 

Ms Maria Corazan Glover v Ozcare [2021] FWC 231
 

Ms Glover was an employee of Ozcare (which provides residential aged care) for over 10 years employed in the role of a part-time care assistant. In her role as care assistant she worked for Ozcare Shailer Park in people's private homes and did not work in residential care facilities.
 

Ozcare gave Ms Glover the direction requiring vaccination following the Queensland's Chief Health Officer's direction pursuant to section 362B of the Public Health Act 2005, that said employees could not enter a residential aged care facility if they did not have an influenza vaccination.
 

Ms Glover opposed the direction on the basis that she had previously suffered an adverse reaction to the influenza vaccination and as a result had nearly died. Nonetheless Ozcare refused to roster Ms Glover or permit her to enter the premises until she had been vaccinated, and she was put on paid personal leave.
 

In or around 26 August 2020, Ozcare informed Ms Glover that their position had remained unchanged and that her paid leave was going to expire on 4 October 2020. On this basis, Ms Glover's view was that Ozcare had notified her that she had been dismissed, with her dismissal to take effect on 4 October 2020.
 

On 9 October 2020, Ms Glover filed an unfair dismissal application with the Commission alleging that her dismissal was harsh, unjust or unreasonable.
 

In reply to the application Ozcare filed a jurisdictional objection stating that Ms Glover had not been dismissed from her employment.
 

In considering whether Ms Glover had been terminated the Commission found that Ozcare had failed to consider that Ms Glover's position did not involve work in residential care facilities and therefore did not fall under the direction, that she had a medical reason for not following the direction which was not considered, and that there were alternative measures that could’ve been implemented to accommodate Ms Glover (such as wearing a face mask).
 

The Commission said that:
 

"In my view, each circumstance of the person's role is important to consider, and the workplace in which they work in determining whether an employer's decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction."
 

Interestingly, the Commission went on to consider the validity of a direction to employees working as Santa Claus to be vaccinated against the coronavirus. The Commission commented that:
 

"…The employer in those scenarios, where they are not mandated to provide social distancing, may decide at their election that vaccinations of their employees are now an inherent requirement of the job…
 

The Commission in this instance found that Ms Glover's employment had been terminated effective 4 October 2020 by Ozcare and the substantive hearing is to be heard and determined.
 

We anticipate this will provide insight into how the court will determine the circumstances in which a direction to be vaccinated against coronavirus will be lawful and reasonable, and an inherent part of a role.
 

Ms Nicole Maree Arnold v Goodstart Early Learning Limited t/a Goodstart Early Learning [2020] FWC 6083
 

This was an out of time application before the Commission regarding Ms Arnold's failure to follow a direction by her employer Goodstart (childcare provider) to be vaccinated against influenza.
 

As a result of failing to comply with a lawful and reasonable direction Goodstart terminated Ms Arnold's employment on and from 13 August 2020.
 

On 4 September 2020, Ms Arnold filed an unfair dismissal application with the Commission alleging that her dismissal was harsh, unjust or unreasonable.
 

Goodstart's direction to be vaccinated against influenza included a process by which employees with medical reasons for not being vaccinated could seek an exemption. In this case, it did not appear that Ms Arnold had a medical reason or health related issue and had therefore failed to comply with the direction.
 

When considering the application a major feature of Ms Anrold's submissions was the proposition that reasonable adjustments should have been made to accommodate her refusal to be vaccinated.
 

The Commission said that Ms Arnold did not appear to have availed herself of Goodstart's process for accommodation in its policy and that it was arguable that she could not claim that reasonable accommodation should have been made for her in circumstances where she did not seek such accommodation on reasonable grounds.
 

The Commission went on to state that:
 

"While I do not go so far to say that the Applicant's case lacks merit, it is my view that it is at least equally arguable that the Respondent's policy requiring mandatory vaccination is lawful and reasonable in the context of its operation 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. Prima facie the Respondent's policy is 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…"
 

Consequences
 

Employers when considering whether to terminate an employee for failing to vaccinate against the coronavirus must consider whether being vaccinated is an inherent part of their role and whether the direction in all the circumstances is reasonable and lawful.
 

To be lawful a direction needs to be consistent with the employee's contract of employment. In particular, the direction must be within the scope of the duties for which the employee was employed.
 

A refusal to follow a lawful and reasonable direction can constitute a valid reason for termination – however if the reason is found to not be valid, this can leave employers open to the risk of an unfair dismissal claim being filed.
 

Should an employee be successful in their application for unfair dismissal, the first form of relief considered by the Commission is reinstatement and then compensation (up to the equivalent of 26 weeks' of pay).
 

Recommendations for employers
 

Based on the above considerations we recommend employers review their contracts of employment when determining whether they are able to establish a policy of mandatory vaccination against coronavirus.
 

When drafting a vaccination policy some considerations should include:
 

• the workplace context: those working in an office environment may wish to strongly recommend vaccination however also put in place other measures such as social distancing, working from home or flexible work practices in case employees do not get vaccinated;
   

• is being vaccinated a part of the inherent requirement of an employees' role: this should be done on a person by person basis looking at the duties performed by each employee;
   

• review of the New South Wales Government's directions or policies (if any) that concern your industry;
   

• include a process for those employees who medically cannot get vaccinated can access in order to reduce the risk of an outbreak; and
   

• include an appeals process by which an employee's refusal can be considered.
   

Other jurisdictions
 

We set out below in a summary table what some Governments have put in place overseas.

 

Jurisdiction	Policy	Exemptions (if any)
UAE	Vaccination is voluntary and employers in the UAE cannot legally require their employees to take the vaccine.	Only relates to the public sector.
	The public sector has in place a Federal Circular for procedures to be followed at federal ministries for those who are not vaccinated: for employees it is mandated that they take a COVID-19 nasal swab test once every 14 days at the cost of the employee or the cost of the employer if failure is due to a medical reason; employees of outsourcing and public service companies who contract with or provide their services who are required to visit are required to take mandating a COVID-19 nasal swab test once every 14 days at the cost of the employer; and employees of advisory service companies and consultant firms who contract with or provide their services who ate required to visit are required to have their employee present a negative test within a period of 3 days prior to such visit.
UK/Italy	Vaccination is not compulsory.
	Current legislation prevents the Government from requiring a person to undertake medical treatment, including vaccination.
France	Vaccination is not compulsory.
	There is a draft bill (Bill No. 3714) that proposes to not grant access to public transport to those who do not present a negative COVID-19 test or proof of a preventative treatment (the vaccine).
World Health Organisation	Persuading people on the merits of a vaccine would be far more effective than trying to make the jabs mandatory.

 

 

For further information, please contact:

 

David Amentas, Partner, Clyde & Co

david.amentas@clydeco.com