Direction to Vaccinate 

By Andrew Frieberg, Special Council, Peak Services Legal and Natalie Todd, Principal Workforce Advisor, Peak Services Legal

With the roll out of AstraZeneca and Pfizer vaccinations for COVID 19 Australia-wide, the question regarding whether an employer can require employees to receive vaccinations is in the spotlight.

There have been several recent cases heard by the Fair Work Commission (FWC) that have shed some light on the principles likely to be applied by the FWC 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 FWC decisions in the cases of Maria Corazon Glover v Ozcare [2021] FWC 2989 (26 May 2021), Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818 (29 April 2021) and Ms Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156 (20 April 2021), have given employers operating in high-risk environments, such as aged and childcare, further confidence that they can direct employees to receive vaccinations, in certain circumstances.

The Fair Work Ombudsman (FWO) has recently adopted a similar approach to these decisions, where an employer is able to give a lawful and reasonable direction to employees to be vaccinated, however such direction should be assessed on a case-by-case basis depending on the employee’s role in the workplace, which may include:

1. Nature of the Workplace or Position

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.
• 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.
• 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”.

The FWO outlined a number of other factors to be taken into account, when an employer is considering issuing a direction to be vaccinated to its employees, including but not limited to:

1. the extent of community transmission of COVID-19, including the transmission of the Delta variant amongst employees, customers, and other members of the community.
2. WHS obligations.
3. the risks associated with the work and duties performed by individual employees.

A further factor that an employer needs to consider is whether the employee has a legitimate reason for not being vaccinated, which includes:

2. Medical Restrictions

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, 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.

In the Goodstart 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.

3. Work Health and Safety Obligations

An important factor to consider for employers is their requirement to fulfil their duties under the Work Health and Safety Act 2011 (Qld) (WHS Act) and more specifically the duty of an employer under s 17 of the WHS Act to manage risks in the workplace including the requirement:

• to eliminate risks to health and safety, so far as is reasonably practicable; and
• if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as reasonably practicable.

Given that it is well known to employers, employees, and the general public of the risks to health and safety from COVID-19 and more specifically the serious health risks of the Delta variant, these factors weigh in favour of meeting the reasonably practical test, as outlined at s 18 of the WHS Act.

Where an employer does not fulfil its obligations under the WHS Act and the COVID19 virus is spread amongst employees and/or its customers and causes a risk to their health and safety, there may be ramifications for the employer, if the employer cannot evidence that it has taken appropriate steps to eliminate or reduce the risk of COVID-19 in the workplace, including, but not limited to the vaccination of its employees.

To meet its obligations under the WHS Act an employer (after assessing the employee’s duties and risks to other employees, customers and the general public) may have the ability to direct an employee to be vaccinated pursuant to s 28(c) of the WHS Act.

Whilst these FWC decisions offer guidance, it is important to note that the decisions are restricted to the specifics of each case, and each case should be assessed on a case-by-case base, which the FWO has now divided into four types:

Tier 1: Employees who are required as part of their duties to interact with people with an increased risk of being infected with COVID-19;

Tier 2: Employees who are required to have close contact with people who are particularly vulnerable to the impacts of COVID-19;

Tier 3: Interaction or likely interaction between employees and other people such customers or members of the public;

Tier 4: Employees with minimal interaction with other employees, customers or members of the public as a part of their duties.

Based on the health risks associated with the duties performed by Tier 1 and 2 employees, it would be more likely that a direction to vaccinate employees in these Tiers would be accepted as being reasonable and lawful, rather than a direction given to employees at Tier 3 and 4.

Despite this, large employers such as SPC and Qantas have now made it mandatory for their employees to be vaccinated. Mr Alan Joyce, CEO of Qantas said, “it’s our responsibility to provide the safest possible environment for our employees and for our customers.’’

Whilst the risks of COVID-19 do not automatically make it reasonable for an employer to direct its employees to be vaccinated, the employer should assess each situation on a case-by-case basis, to ensure the health and safety of its employees and customers, before deciding to issue a direction to vaccinate.

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