There is currently much discussion and debate about whether and, if so when, COVID-19 vaccinations might be mandated or required in certain situations. At least for employers in the aged care and childcare industries, the question of whether or not an employer can require employees to get vaccinated is becoming clearer.
FWC validates dismissal for refusal to be vaccinated
Three recent decisions of the Fair Work Commission have supported the employer’s right to enforce policies that require certain employees to have vaccinations. While all three of these decisions involve a requirement to receive the flu vaccination, the principles are likely to be equally applicable to employer-directed COVID-19 vaccination.
- A receptionist working in a high-care nursing home was dismissed because she refused a flu vaccination. The employee claimed she had an allergic reaction to the flu shot received at work several years before. However, she did not provide any other evidence of this. The employer had provided optional flu shots to employees but had changed its policy to make vaccination mandatory. The Commission decided that this mandatory policy was reasonable in the circumstances, and that the dismissal was not unfair.
- A long-term childcare worker was dismissed when she refused a flu shot after the employer changed its policy to make vaccinations mandatory. The policy contained an exemption for employees with a medical condition. The Commission found that the employee did not produce sufficient evidence of a medical condition and decided that the employer’s mandatory vaccination policy was lawful and reasonable in the circumstances. As a result, the dismissal for failing to comply with the policy was not unfair.
- A long-term in-home care assistant was dismissed because she refused a compulsory flu shot under the employer’s policy, which was introduced following a Queensland Government directive aimed at employees working in aged-care. The employee claimed she had a serious allergic reaction to a vaccination shot when she was a child but did not provide any medical evidence to support this. The employee argued that the employer’s mandatory vaccination policy went above and beyond the Government directive which triggered the policy. However, the Commission considered that the employer’s policy was made as a result of a business decision to protect its clients and employees. The Commission’s decision was that it was reasonable and lawful to implement such a policy, even though it did not allow any exemptions for client-facing employees. As a result, the employee’s refusal to comply with the policy provided a valid reason for dismissal, and the Commission ruled that it was not unfair.
What is notable is that all three decisions discussed above involved circumstances where the employee did not provide relevant or authoritative evidence of a medical reason to not have the vaccine (adverse reaction).
Implications for Employers
The Commission has been careful to point out that these decisions do not mean that mandatory vaccination will be enforceable in every case. Each case will depend on its own particular facts and circumstances. However, the decisions demonstrate that the high risk of spreading infection and the particular vulnerability of patients that characterise childcare and aged-care environments means that it is likely that mandatory vaccination policies would be enforceable in these industries.
The question of whether mandatory vaccination is enforceable in other industries is being tested, with disputes now emerging in the airline industry.
Under common law, all employees have a duty to comply with the lawful and reasonable directions of their employer. 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.
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.
Lessons for employers
- Consider whether mandatory vaccination is reasonable and lawful in the context of your business, employees and clients/customers
- If mandatory vaccination is proposed, ensure you have an appropriate policy in place that is clearly communicated to all employees