Can I direct my employees to be vaccinated?

Posted on July 02, 2021

Following on from our earlier article To Jab or not to Jab, this article provides an update on the current approach to vaccinations and other checks in the workplace, in light of the guidance on vaccinating employees released by the Fair Work Ombudsman and SafeWork Australia and recent decisions in the Fair Work Commission (FWC).

The guidance released provides that the majority of employers should assume that they cannot require their employees to be vaccinated against COVID-19.

However, there are limited circumstances where an employer may require their employees to be vaccinated. Whether an employer can require their employees to be vaccinated is highly fact dependent, in consideration of the workplace and each employee’s circumstances.

The relevant factors to be considered include:

  • whether a specific law (such as state or territory public health law) requires an employee to be vaccinated;
  • whether an enterprise agreement, other registered agreement or employment contract includes a provision about requiring vaccinations;
  • if none of the above apply, whether it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated.

Legislation and public health orders

At this stage, there are several states that have issued public health directions mandating Coronavirus vaccinations for some workers such as health workers and those working within the hotel quarantine system.

In Queensland this affects:

  • health service employees;
  • Queensland Ambulance Service employees; and
  • hospital and health service contractors.

In Western Australia this affects:

  • security personnel, cleaners and hotel staff;
  • medical and health staff; and
  • ADF personnel and WA police.

Most recently, New South Wales has issued a public health order preventing workers specified in the NSW Airport and Quarantine Workers Vaccination Program from entering the workplace or providing services if they haven’t received the first dose of a COVID-19 vaccine. This commenced from midday on 28 June 2021.

The National Cabinet statement released on 28 June 2021 also mandates that all residential aged care workers must have at least the first dose of a COVID-19 vaccine by mid-September 2021.

Agreements or contracts containing terms relating to vaccinations

Some agreements or contracts may contain terms relating to vaccinations or COVID-19 vaccinations specifically. Employers should check if the term applies to COVID-19 vaccinations as, for example, a term relating only to flu vaccinations will not apply.

If there is a term that applies to COVID-19, employers need to consider whether the term complies with anti-discrimination laws. If the term contravenes anti-discrimination laws, it will not be enforceable.

Lawful and reasonable directions

Employers will be able to direct that their employees be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable will be assessed on a case by case basis. The direction must comply with any contract, award or agreement, and any Commonwealth, state or territory law that applies to be lawful.

One factor that may be relevant is whether the direction is a reasonably practicable measure to eliminate or minimise risks to work health and safety under Work Health and Safety Laws. Work health and safety considerations are an important factor to take into account when assessing whether a direction is reasonable.

The COVID-19 pandemic does not automatically make it reasonable for an employer to direct their employees to be vaccinated. However, a direction may be more likely to be reasonable where:

  • the employees interact with people who are at an elevated risk of being infected with COVID-19, for example employees working in hotel quarantine or border control; or
  • employees who have close contact with people who are most vulnerable to the health impacts of COVID-19, for example employees working in aged care or health care.

What if an employee refuses to be vaccinated?

Employees may refuse to be vaccinated for legitimate reasons such as an existing medical condition.

Employees may be subject to disciplinary action if they do not have a legitimate reason for refusing to be vaccinated.

Recent FWC decisions

Yordanos Fesshatsyen v Mambourin Enterprise Ltd [2021] FWC 1244

In response to the COVID-19 pandemic, the employer Mambourin, a disability support services provider, introduced a policy that any employee who recorded a temperature of above 38 degrees was required to immediately leave the workplace, isolate and notify management. Ms Fesshatsyen, the disability support worker in question, took a temperature test after receiving an erroneous initial reading, recorded a temperature of 38.5 degrees. Assuming that the thermometer was faulty she continued to work.

She was later summarily dismissed for failing to comply with a lawful and reasonable instruction and for causing serious risk to the health and safety of Mambourin’s vulnerable clients and colleagues. The FWC, having regard to the business and the seriousness of the risk, held that the policy was a reasonable and lawful direction consistent with the terms and conditions of her employment. The FWC upheld the dismissal.

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

In early 2020, Sapphire Coast Community Aged Care implemented a mandatory flu vaccine policy as a result of the NSW Government public health orders at the time which required any person entering the facility to have an up-to-date vaccination against the flu. Ms Kimber, a receptionist at one of Sapphire’s facilities, was dismissed after refusing to have the flu vaccination claiming that she had suffered an allergic reaction in response to a previous flu shot. However, this was never reported to Sapphire and there was no evidence of any diagnosis by a medical professional or any evidence of an absence from work.

The FWC upheld the dismissal finding that a direction to an employee to have the flu vaccination in the circumstances was a lawful and reasonable direction. Sapphire was right to rely on the Chief Medical Officer’s statement that an allergic reaction did not qualify as a valid contraindication. By refusing to be vaccinated Ms Kimber could not perform the inherent requirements of her job and therefore her dismissal was valid. One of the key points to this decision was the lack of evidence to support that she had a medical contraindication to the flu vaccine and the NSW Government public health orders.

Maria Corazon Glover v Ozcare [2021] FWC 2987

In early 2020, Ozcare an aged care provider, amended its workplace employee immunization policy to require employees receive the flu vaccination in response to the Aged Care Directions issued by the QLD Government. Ms Glover, a care assistant who worked in close proximity with elderly clients, was dismissed after she refused the flu vaccine on the basis that she had experienced an anaphylactic reaction to a flu vaccination when she was a child. Ms Glover did not produce sufficient medical evidence to support this and refused to see a specialist to confirm whether she had anaphylaxis.

The FWC upheld the dismissal finding that the direction to be vaccinated to be lawful and reasonable. The vulnerable nature of Ozcare’s elderly clients and the regulation of the aged care industry was a key factor in the FWC’s determination.

This is a reminder to employers to stay up to date with public health orders in light of recent developments, and to seek legal advice on any issues relating to employees and vaccinations.

Please contact our workplace relations team on 08 8223 7600 if you require assistance.

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