There is currently much discussion and debate about whether and, if so when, COVID-19 vaccinations might be mandated or required in certain situations. Some employers will be impacted by this discussion more than others however all employers likely to be faced with the issue to some extent once the vaccination becomes widely available.
It is likely that a direction from an employer for its employees to receive the vaccine will result in controversy and quite possibly legal action on the basis of objections that may include medical, religious or political grounds. Whether or not such a direction from an employer is valid will depend on a number of factors, primarily whether the direction is “lawful and reasonable”.
On Friday 19 February 2021, IR Minister Christian Porter confirmed the latest guidance from the Fair Work Ombudsman and Safe Work Australia that, in most cases, voluntary vaccination will be encouraged with mandatory vaccination unlikely to be implemented. Safe Work Australia has confirmed that an employer’s duty is “...to eliminate, or if that is not reasonably practicable, minimise the risk of exposure to COVID-19 in the workplace”, and that vaccination is only one element in complying with this duty. All agencies, along with the unions, have indicated that the best practice approach is to be guided by medical experts and health advice in relation to workplace vaccination.
Under common law, all employees have a duty to comply with the lawful and reasonable directions of their employer. An employer may take a position that, in order for it to comply with its workplace, health and safety obligations, all employees are required to be vaccinated so that the risk of transmission of coronavirus in the workplace is eliminated or at least minimised. The counter argument would be that there are other methods of minimising this risk, such as the COVID-safe practices currently in place including hand sanitation, social distancing and in some cases mask-wearing, and that these methods are less intrusive and are reasonable to address the risk of transmission.
Whether or not mandatory workplace vaccination is “lawful and reasonable” will turn on the nature of the workplace and the inherent requirements of the roles being performed by workers. In our view it is unlikely that most workplaces would meet this test.
However the issues for employees extend further than whether or not they are able to give a direction for employees to be vaccinated: just because they can does not necessarily mean they should. Consider a situation where an employee has an adverse reaction to mandatory vaccination or suffers health or other consequences as a result. Would termination for refusal to be vaccinated amount to unfair dismissal? A relevant example might be the unfair dismissal case before the Fair Work Commission last year in which a childcare worker’s employment was terminated following her refusal to receive the flu vaccination. While the FC did not make a determination on whether or not this amounted to unfair dismissal (the issue was whether an extension of time should be granted to the applicant), in a consideration of the merits of the case Deputy President Asbury made the following comments
“While I do not go so far as to say that the Applicant’s case lacks merit, it is my view that 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.”
On the flip side- even if the employer cannot lawfully make a direction to vaccinate or decides not to direct employees to be vaccinated, they may still be exposed to risk and possible legal action in the event an employee contracts COVID-19 in the workplace.
One thing is certain- there will be heated debate about this issue with strong arguments for and against mandatory vaccination in the workplace. While the government or public health authorities may lead the way, it appears unlikely that mandatory vaccination will be legislated or directed across the population as a whole. In that case, employers will have to make the call as to whether or not mandatory vaccination amounts to a lawful and reasonable direction in the context of the work being done by employees and the environment in which their business operates.