Jacquie Seemann and Jessica Rose

Mandatory vaccination policies – what is lawful and reasonable?

Jacquie Seemann and Jessica Rose

13 October 2021

Employment Disputes Employment Policies

In a very timely new decision, the Fair Work Commission has given further guidance for employers about policies mandating vaccines and, in particular, when such policies are likely to be considered lawful and reasonable.

In our April 2021 blog we reviewed the previous decision of the Commission considering the validity of a mandatory flu-vax policy in Goodstart Early Learning[1]. The Commission had also considered a flu-vax policy in the decision of Ozcare[2]). In those cases, the policies were found to be lawful and reasonable because:

  • the employer(s) held duties under work health and safety laws to take steps to minimise health and safety risks to workers (and others);
  • the flu vaccination was considered the most effective risk control measure;
  • other control measures (such as PPE, social/physical distancing) were impractical or were not sufficient to minimise the risk of flu being transmitted, particularly in a child care setting;
  • the degree of harm that could occur and prevalence of the flu in the community justified the implementation of this control measure; and
  • good process was adopted, including consulting with affected employees for the purposes of understanding employee needs, concerns and relevant risks within the workplace(s).

It follows by close analogy that many employers can also implement mandatory COVID-19 vaccination policies, if this is done both carefully and reasonably.  Any specific challenges to a vaccination policy by employees (and claims for exemptions) should be handled on a case-by-case basis based on their objection(s) and their individual circumstances.

Challenges to Public Health Orders (PHOs)

Each State and Territory Government (along with the Australian Government) continues to introduce and update a range of PHOs mandating the COVID-19 vaccine across a variety of occupations, and some of those PHOs are being challenged in Supreme Court litigation in NSW, Queensland and Victoria.

However PHOs have been used to mandate other vaccinations before the COVID-19 vaccine existed. One such order was the source of the dispute in Kimber v Sapphire Coast Community Aged Care Limited[3] (Kimber).

In March 2020, the NSW Public Health (COVID-19 Aged Care Facilities) Order 2020 (March PHO) required an employee of the operator of a residential aged care facility not to enter the premises of the facility if they did not have an up-to-date vaccination against influenza.  The March PHO also required the operator of such a facility to take all reasonable steps to ensure that a person did not enter or remain on the premises in contravention of this requirement. The March PHO was revised in June 2020 to similar effect.

On 27 September 2021, the Full Bench of the Commission in Kimber refused permission to appeal a first instance decision concerning an unfair dismissal application by a receptionist at an aged care facility who had refused to obtain the flu vaccine despite requirements in the March and June PHOs.  The worker unsuccessfully alleged that she was exempt from having to receive the vaccine as she had presented a medical certificate.

The Full Bench took into account the circumstances of the workplace, and noted that it was not in dispute that the COVID-19 pandemic had been disproportionately fatal for the elderly and those in aged care.  In finding that the worker was not unfairly dismissed and dismissing the appeal, the majority concluded:

  • the vaccination direction was both lawful and reasonable;
  • the worker’s refusal to be vaccinated meant that she could not perform the inherent requirements of the role, including her duties to greet visitors and escort them to residents’ rooms;
  • the worker was found to hold a general anti-vaccination position and failed to properly make out any valid medical exemptions; and so her assertions did not constitute a medical contraindication (as determined by her former employer);
  • regarding an additional matter which arose on appeal, which was the Federal Government’s requirement that from 17 September 2021 all residential aged care workers must have received a minimum first dose of a COVID-19 vaccine as a condition of employment, there was no possibility of granting the preferred remedy of reinstatement absent an advance commitment from her to take the COVID-19 vaccine (which she refused to give); and
  • it was against public interest to encourage spurious objections to lawful workplace vaccine requirements.

In an 80 paragraph dissent, Deputy President Dean was critical of the COVID-19 vaccine requirement, referring to it as ‘the introduction of a system of medical apartheid and segregation‘ and ‘an abhorrent concept that is morally and ethically wrong‘. DP Dean highlighted a number of grounds on which she said a mandatory COVID-19 workplace vaccine should be opposed, including that:

  • the Therapeutic Goods Administration has only provisionally approved the vaccines, the long term effects of the COVID vaccines are unknown and consent is required for participation in clinical trials;
  • there is no justifiable basis on health and safety grounds for employers to mandate the vaccine, and they should utilise other methods to limit the spread of the virus, including rapid antigen testing; and
  • the PHOs are not a proportionate response to the COVID-19 health threat and cause discrimination on the ground of disability – being the perception of likelihood of infection.

It will be interesting to see which, if any, of the arguments raised in the dissent gain traction in any future cases.

Please contact a member of the Employment, Workplace Relations and Safety Team if you would like assistance with any of these issues.

Authors

Jacquie Seemann | Partner | +61 2 9020 5757 | jseemann@tglaw.com.au

Hudson Digby | Associate | +61 2 8248 5829 | hdigby@tglaw.com.au

Jessica Rose | Associate | +61 2 8248 5829 | jrose@tglaw.com.au

 

[1] Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156.

[2] Glover v Ozcare [2021] FWC 231.

[3] [2021] FWCFB 6015. https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb6015.htm