Earlier this year, we published an Insight explaining employers’ rights with respect to requiring employees to participate in Australia’s COVID-19 vaccination program.
The roll-out of the COVID-19 vaccine has been slower than expected and this seemed to temporarily stifle debate on the issue of mandatory vaccinations in the workplace. However, two recent unfair dismissal cases dealing with employer mandates with respect to the influenza vaccine have put this issue back in the spotlight.
These two cases are briefly summarised below.
Barber v Goodstart Early Learning
Goodstart Early Learning (Goodstart), a not-for-profit organization providing childcare and early learning services, introduced an immunisation policy in 2020 requiring all employees to receive the influenza vaccine unless they had a medical condition which made it unsafe for them to do so.
The employee applicant refused to comply with this policy on several medical grounds, including that she had a sensitive immune system. Goodstart determined that the medical evidence submitted by the employee did not support her refusal and accordingly, the employee was dismissed for failing to be vaccinated and failing to meet the inherent requirements of her role.
In considering whether the mandate under the policy constituted a lawful and reasonable direction, Deputy President Lake had regard to several different matters including:
(a) The work health and safety obligations of employers operating a childcare;
(b) The recommendations from the Federal and State Governments that persons working in childcares receive the influenza vaccination;
(c) That based on the scientific evidence submitted by the parties, the vaccination did reduce rates of infection;
(d) The practical ineffectiveness of other control methods for the spread of influenza in the context of childcare (e.g. social distancing, PPE etc.);
(e) That the policy was appropriately adapted as it allowed for medical exemptions; and
(f) That there had been union consultation and support for the policy.
Based on these matters, Deputy President Lake found that the mandate under the policy was lawful and reasonable, stating that:
“The childcare industry faces unique organisational challenges which makes other controls less effective, or impracticable. I am satisfied that it is reasonable for a childcare provider to mandate flu vaccinations for those staff who deal with children on a regular basis, and in such close proximity”.
Relevantly, Deputy President Lake agreed with Goodstart with respect to the issues with the medical evidence submitted by the employee substantiating her claim for a medical exemption. Accordingly, Goodstart’s decision was upheld, and the employee’s unfair dismissal application was dismissed.
Interestingly, it was not accepted that by failing to be vaccinated, the employee was unable to meet the inherent requirements of her role as an educator within Goodstart.
Kimber v Sapphire Coast Community Aged Care
In this case, an unfair dismissal application was brought by a receptionist within Sapphire Coast Community Aged Care (Sapphire Coast) following her dismissal for refusing to receive the influenza vaccine.
Unlike in Barber v Goodstart Early Learning, it was found that Sapphire Coast had never actually “directed” the employee to receive the vaccine but instead, relied upon the Public Health Order in force at the time which required aged care workers to be vaccinated against influenza. Nevertheless, Commissioner McKenna noted that even if Sapphire Coast had given such a direction, as it would have effectively reflected what the law in 2020 required, it would have been both lawful and reasonable.
The employee’s refusal to receive the vaccination was based on a claim that she previously had a severe reaction to a similar vaccination, however this claim was not supported with medical evidence.
Accordingly, it was found that the employee was unable to perform the inherent requirements of her role and therefore, her dismissal by Sapphire Coast was not unfair in the circumstances.
Consequences for Employers
The influenza vaccine is in many respects, an utterly different beast to the COVID-19 vaccine. Nevertheless, these decisions do provide some much-needed guidance as to when an employer may in fact be permitted to mandate that its employees be vaccinated against COVID-19. In summary:
1. A mandatory vaccination policy that is introduced in line with a Public Health Order to that same effect is likely to be considered lawful and reasonable.
2. Whether an employer can implement a mandatory vaccination policy in the absence of specific legislative support for such a policy (such as a Public Health Order) will primarily depend on:
(a) The industry in which the employer is operating;
(b) The alternative risk and control measures available for the employer; and
(c) Whether the vaccination is supported by Government policies and recommendations.
3. A mandatory vaccination policy should include an exemption on medical grounds. However, the validity of applications for these exemptions may be challenged if this is reasonable and justified in the circumstances.
It is of course important to remember that these cases concerned workplaces in the aged-care and childcare industries, which are some of the more “high risk” workplaces in the context of infectious diseases. To date, there is still no case law dealing with such a mandate in “less risky” workplaces.
If you have any questions regarding the COVID-19 vaccination or employers’ rights with respect to the pandemic more generally, Addisons’ employment law team can help.
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