By Bethany Silverman and Caterina Apostolakos
As the Australian Government rolls out the COVID-19 vaccine, many employers are wondering whether they can mandate the vaccine in the workplace. There has been virtually no guidance on compulsory workplace COVID-19 vaccinations, however, the Fair Work Commission (FWC) has handed down a significant decision in which it upheld the termination of an employee who refused to have the flu shot.
Background on the case
In the case, a worker in a childcare centre refused to have the flu shot, claiming that the company’s mandatory vaccination policy amounted to an ‘unlawful assault’. She also refused based on an alleged “sensitive immune system” and a prior adverse reaction. The policy required all employees to be vaccinated unless they had a medical condition which meant it was unsafe.
The employer requested evidence to back up her refusal, however, multiple doctors refused to provide her a statement that she should be exempt from vaccination. The employee produced evidence of coeliac disease, unsubstantiated accounts of an allergic reaction, and a statement that she had a sensitive gut to support her refusal. On this basis, the FWC was not satisfied that she had a valid medical exemption.
The employee was terminated four months after she first raised issues about having the vaccination and subsequently made an unfair dismissal claim. Although the FWC critiqued the employer’s characterisation of the termination as capacity related, it ultimately decided that the employer had a valid reason to terminate her employment, noting that the correct characterisation should have been misconduct.
Can an employer require an employee to be vaccinated?
At present, no laws or public health orders in Australia enable employers to mandate COVID-19 vaccinations, meaning there is no universal right of an employer to require employees to have it. The FWC, in this case, was careful to note that despite guidance surrounding COVID-19 vaccines in the workplace being scarce, its decision was “relative to the influenza vaccine in a highly particular industry”. This means that the decision may provide guidance, however, should not be relied upon by an employer to mandate the COVID-19 vaccination in the workplace.
Nonetheless, there may be limited circumstances where an employer may require their employees to be vaccinated, although this is largely determined on a case-by-case basis.
Should a public health order or other legislation come into effect which requires vaccination in specific industries, employers and employees alike would therefore be required to comply and the vaccine would become a condition of employment. This may occur in high-risk workplace industries such as those directly working with COVID-positive individuals or with high-risk individuals such as the elderly or disabled.
Some employment contracts or enterprise agreements may contain certain terms directly relating to vaccinations. However, terms that strictly refer to COVID-19 should be assessed by employers to ensure they are compliant with anti-discrimination laws and reasonable in the circumstances. This is imperative to mitigate any risks surrounding general protections or unfair dismissal claims under the Fair Work Act 2009 (Cth) (‘the Act’).
Employers may direct their employees to be vaccinated against COVID-19 if the direction is lawful and reasonable. Lawfulness involves compliance with any contract, enterprise agreement, award, or State or Territory law. The Coronavirus pandemic itself does not automatically render an employer mandating COVID-19 vaccination lawful or reasonable.
The lawfulness or reasonableness is assessed on a case-by-case basis. An example of a reasonable direction may include requiring vaccinations for employees who interact with people who have an elevated risk of being infected with COVID-19 or close contact with those individuals most vulnerable to the health impacts of COVID-19.
What happens if an employee refuses to be vaccinated?
There may be instances where an employee refuses to be vaccinated, despite it being a legal requirement, or after a lawful and reasonable direction is made. In such circumstances, an employer can ask an employee to provide reasons for refusing vaccination, including supporting evidence. If a legitimate reason is provided such as instances where medical conditions prohibit vaccination, this may mean the employee is exempt from the requirement. In these cases, employers may consider alternative work arrangements such as working from home, or roster hours of work, or duty changes if appropriate.
Can an employer take disciplinary action or terminate if an employee refuses to get vaccinated?
In limited circumstances, an employer may take disciplinary action including termination of employment against an employee if the employee’s refusal is in breach of a specific law or a lawful and reasonable direction requiring vaccination, and there is no valid exemption.
Whether an employer can take disciplinary action against an employee for refusing to be vaccinated will depend on existing workplace policies, employment contracts or enterprise agreements, awards, public health orders, or any other applicable legislation. However, before commencing disciplinary action, employers should discuss the employee’s reasons for not wanting to be vaccinated. If a legitimate reason arises, consideration of alternative arrangements may be necessary.
As employees have various protections against being dismissed, employers must ensure they follow a fair and due process to avoid any discrimination, general protections, or unfair dismissal claims under the Act.
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Bethany Silverman is a qualified Senior Workplace Relations Consultant at FCB Group and HR Assured. She regularly provides advice to a wide range of businesses in respect of compliance with workplace laws and managing complex matters including disciplinary and performance management processes and terminations.
Caterina Apostolakos is a Workplace Relations Advisor at our parent company, FCB Group and HR Assured. Caterina provides employment relations advice and support to our clients’ businesses on a wide range of matters.