Article by: Charles Power, Partner, Holding Redlich
Hear Charles Power speak at the Victorian In-House Counsel Day on 'Employer Responsibilities or Industrial Manslaughter? Ethical Considerations as COVID Vaccines Roll Out'
The Australian government recently began the nationwide rollout of the COVID-19 vaccination. Participation has been the topic of considerable discussion, with some industries and workplaces in strong support of the scheme.
Employers are now grappling with the question of whether or not they can implement mandatory vaccination policies in the workplace. We consider some of the issues sparked by the debate.
Lawful and reasonable direction
Under the common law, an employer can issue a lawful and reasonable direction to an employee. If this occurs the employee has a corresponding duty to carry out or observe that direction. A ‘lawful’ direction is one that does not contravene a state, territory or Commonwealth law. Whether or not a direction is ‘reasonable’ depends on the circumstances of the case.
When considering whether or not a direction to receive a COVID-19 vaccination is reasonable, employers need to consider:
- the nature of the work being performed
- the nature of the clients and other stakeholders
- the ability to mitigate any safety risks
- whether or not the employee can perform the inherent requirements of the role without being vaccinated
- anti-discrimination law.
Whether or not the imposition of a vaccine can be justified based on the nature of the work being performed and people who may be affected comes down to the need to preserve a safe workplace. If circumstances exist that mean vaccinations are necessary to keep the workplace and the public safe, then employers will be able to override those individual rights. Industries in which this is a critical question include health care, aged care, childcare and international travel.
However, even if a particular workplace situation creates an elevated health and safety risk, this ultimately needs to be balanced against the employer’s ability to mitigate the safety risk posed. This may be achieved by implementing strict cleaning and hygiene protocols, requiring employees to conform to social distancing and wear face masks and directing employees not to attend work if they are feeling unwell.
Employers also need to consider the practicality of allocating alternative duties or having employees work remotely. If an employee who refuses to vaccinate can be reasonably redeployed to alternative duties and still properly perform the inherent requirements of the role, the employer’s insistence that the employee gets vaccinated will likely be invalid.
An arguable case for mandating vaccinations
Ultimately these are untested waters. The Fair Work Commission (Commission) has dealt with a similar case concerning the influenza vaccine.
In Arnold v Goodstart Early Learning Limited  FWC 6083, the employer, a childcare centre, required employees to be vaccinated against influenza unless they had a health or medical reason which would justify an exemption. The employee objected to being vaccinated, but not on health or medical grounds. Deputy President Asbury said the childcare centre’s policy was:
"… necessary to ensure that [the employer] 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…”
It appears that in some circumstances the Commission will accept there is an arguable case for mandating vaccinations, and any objections raised by employees must be balanced against any overriding safety considerations.
A workplace vaccination policy may give rise to discrimination claims from employees. State and Commonwealth anti-discrimination legislation mean employers would need to make a cogent case for imposing mandatory vaccination due to the risk of an employee having the virus. If an employee is dismissed for refusing to be vaccinated against COVID-19 due to a physical or mental disability, this could be unlawful depending on the circumstances.
The situations in which a person’s disability means they cannot be vaccinated are probably fairly limited. If a person is known to be vulnerable to allergic shock or anaphylaxis, that could be a reason for not getting vaccinated.
The definition of disability includes a disorder that affects a person's thought processes, perception of reality, emotions or judgment. It is conceivable that if someone has a diagnosed phobia of vaccines or needles this might come under the remit of the anti-discrimination legislation and offer them protection.
However, even if a vaccination mandate discriminates against a person who has a disability, there are some circumstances in which it may still be lawful to impose that requirement if it is reasonable. In South Australia, Northern Territory, Queensland, Victoria and Tasmania, anti-discrimination laws would not prevent the operation of a mandatory vaccination policy in circumstances where the policy is reasonably necessary to protect public health.
These issues will be canvassed by the Fair Work Commission when it hears the unfair dismissal case of Glover v Ozcare in the coming weeks. This case involves a 64-year-old aged care assistant who regularly declined flu vaccinations for over 10 years because of anaphylaxis, which was accepted by her employer. Her employer then mandated compulsory flu vaccines, which the employee refused on medical grounds, and she was dismissed. The Commission will determine whether or not her refusal to get vaccinated was a valid reason for dismissal. In a preliminary ruling, the Commission has made it clear that the reasonableness of the requirement will depend on the person’s role and the workplace, the risk posed to others, and whether measures are available to counter that risk.
Currently, it is too uncertain for most employers to implement mandatory vaccinations for new and existing staff. It might be doable in sectors where it is justified by risk, for example, workers involved in the mandatory hotel quarantine of overseas travellers. Ultimately, the situation is fluid and all employers and other stakeholders will need to be ready to adapt as this space develops.
Authors: Charles Power & Ella Clements
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.