Almost all Australians would be aware that our COVID-19 vaccination program began last week. In accordance with the federal government’s “COVID-19 Vaccination Policy”1 (Policy), the vaccine will be rolled out gradually to certain priority groups before it becomes available to the wider public. Quarantine and border workers, frontline health care workers and aged care and disability care staff will be the first to receive the vaccination over the coming weeks.

As the vaccine becomes available to more and more people, many employers will grapple with the issue of whether their employees can, or should, be forced to participate and receive the vaccination as a condition of their ongoing employment.

From this issue stems several other workplace dilemmas. For example, can the absence of a mandate expose the employer to liabilities from a work health and safety perspective? Or if such a mandate is permissible, what disciplinary action can be taken in response to an employee’s refusal to participate?

The legal position

From an employment law perspective, the question of whether an employer can direct an employee to receive the vaccination depends on whether the direction is considered lawful and reasonable in the circumstances.

In assessing whether the direction is lawful and reasonable, regard would need to be had to several factors including but not limited to:

(a) the nature of the employer’s business and the work performed by the employee;

(b) the work health and safety concerns of the employee, the workplace and the visitors, customers and clients of the employer;

(c) whether the vaccination is necessary to enable the employee to perform the inherent requirements of the employee’s position;

(d) whether the direction would amount to unlawful discrimination on grounds such as the employee’s religion or disability status;

(e) whether a modern award, enterprise agreement, other registered agreement or employment contract includes a provision dealing with mandatory vaccinations; and

(f) whether the vaccination is already mandatory for the employee under the laws or regulations of the relevant jurisdiction (as is the case in most health, childcare and aged care sectors with respect to flu vaccinations and vaccinations for other infectious diseases).

To date, the caselaw on this issue is relatively scarce.

The matter of Arnold v Goodstart Early Learning Limited 2 related to the dismissal of the applicant from her employment as a childcare worker after she refused to receive the flu vaccination. The vaccination was mandated by the respondent and although the respondent made an exemption available on medical grounds, the applicant did not plead that her refusal was for medical reasons.

As the Fair Work Commission (FWC) refused the applicant’s application for an extension of time to file her unfair dismissal claim, the lawfulness of the dismissal was not considered by the FWC in any substantive manner. However, it was noted by Deputy President Ashbury that the mandate was

“necessary to ensure that it [the respondent] 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.” 3

Deputy President Ashbury also noted that it was

“arguable that the Applicant 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, which involves the provision of care to young children and infants.”

A similar issue came before the FWC very recently in Glover v Ozcare4. In this matter, the applicant, an in-home care worker, alleged she was unfairly dismissed after being informed by the respondent that due to the COVID-19 pandemic, she could not return to work without first receiving the flu vaccination. The applicant alleged she was unable to receive the vaccination due to medical reasons (specifically, at the age of seven the applicant suffered anaphylaxis immediately after receiving a flu vaccination). It is important to note that the applicant refused to obtain or provide medical advice regarding her capacity to receive the vaccination.

The respondent raised a jurisdictional objection on the grounds the applicant had not been dismissed. However, this application was dismissed by Commissioner Hunt, who referred the question of whether the dismissal was unfair for a further hearing (which has not yet occurred). In the hearing of the jurisdictional objection point, Commissioner Hunt noted that:

“…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. Refusal of such may result in termination of employment, regardless of the employee’s reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector.”5

At the very least, these cases illustrate the FWC’s openness to the argument that in some circumstances, vaccination against an infectious disease may amount to an inherent requirement of an employee’s position and as such, an employee may be validly dismissed for refusing the employer’s direction to receive the vaccination.

The guidance to date

The Fair Work Ombudsman and Safe Work Australia have recently updated their guidance on this issue7. Both agencies have stressed that as a guiding principle, the majority of employers should assume they are not able to mandate that their employees receive the COVID-19 vaccination. The guidance also suggests that in most circumstances, employees will be unable to refuse to come to work because a colleague had not been vaccinated.

Further, according to the Policy, the federal government has confirmed that it will not be mandating that Australians receive the COVID-19 vaccination. However, it has been acknowledged that public health orders can be issued at the state and territory level, which could potentially include a requirement that certain people be vaccinated. Consideration has been given in the New South Wales context for more stringent measures to be introduced as an incentive to receiving the vaccination, such as requiring proof of vaccination for entry into hospitality venues.8 While these measures have not yet been implemented, this area of the law is very fluid and is subject to change.

The potential consequences

The refusal to comply with a lawful and reasonable direction will generally constitute a valid reason for dismissal. However, if the direction is challenged by the employee in an unfair dismissal claim, and the direction is deemed not to be lawful or reasonable in the circumstances, the employee is likely to be successful in the unfair dismissal claim on the basis there was no valid reason for the employee’s dismissal.

Further, an employee has a right to refuse to comply with a direction from the employer that is not lawful and reasonable in the circumstances. Any adverse action that is taken against the employee by the employer for refusing to comply with such a direction will expose the employer to risk of a general protections claim being made. Similar risks exist with respect to unlawful discrimination claims, particularly on the grounds of the employee’s disability status or religion.

There is also scope for workers compensation claims to be made by employees who experience side effects from receiving the vaccination where this was received by the employees in response to the employer’s mandate. In high risk workplaces, the failure to introduce a mandate could also bring to the fore, work health and safety issues.

What should employers do?

Careful consideration will need to be given by employers as to whether their workplace is sufficiently “high risk” such that a mandate that employees receive the COVID-19 vaccination would be considered lawful and reasonable.

Generally speaking, a “high risk” workplace would be one where employees are required to interact with individuals who have an elevated risk of being infected with COVID-19 (e.g. hotel quarantine) or one where employees are required to be in close contact with individuals who are highly vulnerable to the health impacts of COVID-19 (e.g. health care or aged care).

If an employer’s workplace does not fall within either of the above categories, any mandate the employer introduces with respect to the vaccination is unlikely to be considered lawful and reasonable in the circumstances.

It should be noted that there is no impediment to employers promoting the COVID-19 vaccination provided the employer’s conduct aligns with the current health and regulatory advice. In many situations, promoting vaccinations can result in more positive outcomes for the workplace in comparison to mandating them.

Employers should also remain up to date with any government directions or policies in place that concern their industry.