Mandatory vaccinations in the workplace: tread with caution

As the colder months are beginning to set in, and many workers have settled back into the office working environment, employers may be considering whether flu or COVID-19 vaccinations should be a requirement for their workers.

Two independent yet recent Fair Work Commission (FWC) decisions have considered whether the dismissal of an employee who refuses to receive an influenza vaccine is harsh, unjust or unreasonable. In both cases, the FWC warned employers against using the decisions to support employee terminations on the basis of refusing to have a vaccination.

Barber v Goodstart Early Learning [2021] FWC 2156

Goodstart Early Learning (Goodstart) introduced a workplace policy requiring all staff to be immunised against influenza unless they have a medical condition which would make immunisation unsafe. Goodstart undertook a comprehensive consultation process, over a period of four months, when the requirement to be vaccinated was introduced.

The applicant was an employee of Goodstart who sought a medical exemption from the policy on the basis that she had a “sensitive immune system” and a history of chronic autoimmune disease. She also claimed to have had an allergic reaction to the influenza vaccination approximately 11 years prior.

In order to obtain documentation supporting her request for a medical exception, the applicant self-reported her concerns to two doctors who each issued her with a medical certificate. These certificates stated that “the [applicant] reports reacting quite badly to Flu Vaccination” and that “we don’t have a record of her reaction in our surgery.”

Goodstart proceeded to dismiss the applicant on the basis that she did not meet the inherent requirements of her role as a consequence of her refusal to be vaccinated against influenza.

The FWC was not satisfied that that the applicant’s refusal to be vaccinated against influenza meant that she did not meet the inherent requirements of her role. However, it considered that her conduct may constitute misconduct in the sense that it was a failure to comply with a lawful and reasonable direction of Goodstart.

In making its determination, the FWC was required to consider whether the policy mandating the influenza vaccine was lawful and reasonable, which should be considered on a case by case basis. The FWC determined that the childcare industry is unique in the sense that safety is of paramount importance, considering the particular vulnerability of children and the fact that social distancing is not practical. The FWC also highlighted the potential for infectious diseases to spread through childcare providers.

Accordingly, the FWC found that the mandatory vaccination policy was both reasonable and lawful. In the absence of a proven medical exception, the applicant’s failure to comply with the policy constituted misconduct and her dismissal was not harsh, unjust or unreasonable.

The FWC reiterated that its decision was relative to the influenza vaccine in a highly particular industry. It warned against using this decision to support mandatory vaccination policies in other industries.

Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818

In 2020, the New South Wales Government made a Public Health Order which had the effect that aged care providers were not permitted to allow individuals to work on their premises unless they were up-to-date with their influenza vaccine. Accordingly, Sapphire Coast Community Aged Care (Sapphire Coast) communicated to its employees that having an up-to-date influenza vaccination was necessary for attendance at work, subject to few specific medical exemptions.

The applicant had received the influenza vaccine through her employment on two previous occasions. She claimed that on the second occasion she suffered severe adverse effects.

In support of her assertions, the applicant produced:

1. a “letter of support” from her doctor which relayed information she had self-reported and which included a patient declaration certifying the information she provided to her doctor was true and correct; and

2. a letter from a Practitioner of Chinese Medicine which stated that the applicant did not wish to receive the influenza vaccination and that she had been prescribed with a herbal formula designed to boost the her immune system.

Sapphire Coast dismissed the employee on the basis that she was unable to fulfil the inherent requirements of her role.

The FWC noted that while an employee is free to make a personal choice regarding whether or not to receive the influenza vaccination, Sapphire Coast nonetheless had obligations under the Public Health Order and could not permit an employee to work on its premises without an up-to-date vaccination.

The FWC found that because the applicant was not permitted to enter her workplace as a result of the Public Health Order, she was in fact unable to fulfil the inherent requirements of her role and the dismissal was not harsh, unjust or unreasonable.

So, can employers require employees to be vaccinated?

The findings of the two recent FWC decisions must be treated with caution. The FWC made it clear that employers should not rely on these decisions to support the introduction of a mandatory vaccination policy in other workplaces or for other types of vaccines.

The Occupational Health and Safety Act 2004 (Vic) requires employers to ensure the health and safety of their employees “so far as is reasonably practicable.”

We know that what is “reasonably practicable” will vary for different employers depending on the nature of their business and the industries in which they work. As we have seen, more extreme measures may be necessary in certain industries and workplaces which are considered “high-risk.” For example, aged care providers are responsible for ensuring the welfare of people who are particularly vulnerable and are unable to mitigate risk through social distancing and remote working.

Therefore, it is necessary to consider the nature of your workplace and any particular vulnerability of employees, clients and other people. Consider whether you can mitigate the risk of disease through other measures, such as remote working and hygiene protocols. You will also need to consider the operation of any relevant government directions and guidelines.

Employers should not take a blanket approach to vaccines. Any policy that you introduce to ensure the health and safety of employees should be proportionate to the hazards and risks that are particular to your workplace.

COVID-19 vaccinations in the workplace

With many Australians returning to their workplaces, employers may also be considering what the recent FWC decisions mean for the COVID-19 vaccine.

The FWC has emphasised that the findings of its recent decisions are specific to the influenza vaccine within certain “high risk” industries and it is not appropriate to extrapolate them further. However, it is clear that in the absence of government guidance, it will be necessary for employers to consider the factors outlined above, specifically:

• the particular risks associated with the workplace and what might be considered ‘reasonably practicable’ in all the circumstances; and
• whether mandating the COVID-19 vaccine would be considered ‘lawful’ and ‘reasonable.’

If you require assistance with implementing or drafting occupational health and safety policies or advice for your business, the experienced Workplace Relations team at Coulter Legal can assist.