In 2020, employers were faced with a number of challenging situations arising from the COVID-19 pandemic, from navigating the stand down provisions of the Fair Work Act 2009, then the JobKeeper scheme, all the while trying to protect businesses to allow employees to return to work as normal once a vaccine is implemented.
As the rollout of the COVID-19 vaccine nears, the next challenge for employers will potentially be dealing with employees that refuse to be vaccinated against COVID-19. Two recent cases provide some guidance to employers as to whether when it is reasonable to direct that employees be vaccinated and whether refusal to be vaccinated may be grounds for termination.
In Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083, the Fair Work Commission dealt with an application to bring an unfair dismissal claim out of time. The Applicant was a childcare worker employed by the Respondent. The Respondent directed all employees to have the flu shot. The direction provided a process by which employees with medical reasons for not being vaccinated could seek an exemption. The Applicant objected to being vaccinated but did not have medical reasons for doing so.
The Respondent terminated the Applicant for failing to comply with a lawful and reasonable direction. Ultimately, the Fair Work Commission declined the extension of time application, so it was not required to determine whether the Applicant was unfairly dismissed for failing to have the flu shot. However, when considering the merits of the application for the purposes of the extension of time application, the Fair Work Commission stated the following:
“… it is at least equally arguable that the Respondent’s policy requiring mandatory vaccination is 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. 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. It is also equally 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.”
In Ms Maria Corazon Glover v Ozcare 2020 FWC 13450, the Applicant was a long-standing employee of the Respondent. Her duties included visiting people and caring for them at their homes. In 2020, the Respondent directed that all employees have the flu vaccine. In previous years, the Applicant declined a flu vaccine for medical reasons and this was accepted by the Respondent. However, as a result of the pandemic, the Respondent refused to roster the Applicant on shifts unless she was vaccinated.
The Fair Work Commission held that by the Respondent enforcing its policy that unvaccinated employees not be rostered on to work, the result was that the Applicant was terminated at the Respondent’s initiative as she was not permitted to perform any work. When considering whether the dismissal was unfair, the fair work commission stated:
“…there is much discussion around the legality of employers requiring employees to be vaccinated against influenza in light of the adverse reaction a vulnerable person might have if they have influenza and then contract COVID-19. It is, of course, a very concerning proposition, and medical evidence to-date suggests that such a combination is highly likely to increase the potential fatality of the individual.
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. 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.”
What does this mean for mandating employee vaccinations?
The above decisions indicate that an employer can probably direct an employee to be vaccinated against COVID-19 provided the direction is a lawful and reasonable direction. The direction will be considered lawful and reasonable in circumstances where the vaccination is necessary for the employee to carry out the inherent requirements of their job. Whether the vaccination is necessary to allow an employee to undertake their duties will depend on the circumstances of the job and the environment of the workplace.
In the context of COVID-19, it seems from this decision that whether an employer can direct that an employee be vaccinated will obviously be clearer in relation to employees working in hospitals, aged care, child care centres and schools. However, is not clear at this stage whether an employer outside of these situations, whose business does not directly deal with vulnerable people, will be able to direct its employees to be vaccinated against COVID-19.
