Can an employee refuse to be vaccinated on religious or scientific grounds?

Two common reasons we have observed when employees have chosen not to comply with their employer’s COVID-19 vaccination policy are religious objections and doubts about the safety and efficacy of vaccines.

In the recent decision of Jovan Jovcic and Filip Markovic v Coopers Brewery Limited [2022] FWC 1931, the Fair Work Commission (FWC) confirmed that reliance on advice from the Australian Technical Advisory Group on Immunisation (ATAGI) in formulating a COVID-19 vaccination policy is reasonable, notwithstanding the existence of contradictory scientific opinion. The FWC also confirmed that, at least in some circumstances, it is not unreasonable to refuse an exemption to a COVID-19 vaccination policy on the basis of a religious objection.

Facts

Mr Jovcic and Mr Markovic (the Employees) worked at the Coopers Brewery (Coopers) premises in Regency Park, South Australia. In October 2021, Coopers began the process to introduce a mandatory COVID-19 vaccination policy (the Policy). Following a consultation and risk assessment process which relied heavily on the advice of the ATAGI in respect of COVID-19 vaccines, Coopers implemented the Policy on 23 December 2021.

During the consultation process, the Employees had raised a concern about the absence of an exemption to the Policy on religious grounds. They were members of the Serbian Orthodox Church which was said to have a ‘moral issue in accepting vaccines that have been developed from cell lines that were obtained from tissues harvested from aborted foetuses’ but did not forbid its members from becoming vaccinated.

Following the implementation of the Policy, the Employees were disappointed that it appeared they might be forced to choose between their faith and their work and livelihood.

In subsequent communications, Mr Jovcic provided documentation outlining his religious objection to the use of foetal material in the vaccines. He requested an exemption to the Policy on religious grounds. He also asked other questions in relation to the safety and efficacy of COVID-19 vaccines.

Coopers undertook a review of the circumstances and determined that an exemption could not be offered, and there were no alternative work opportunities (e.g. in isolation or from home) for either of the Employees. Accordingly, on 21 January 2022, the Employees’ employment was terminated.

Decision

Efficacy of vaccination argument

The Employees submitted that there was no valid reason for their dismissal because the direction to comply with the Policy was unreasonable, when the primary purpose of the Policy (i.e. to prevent the transmission of COVID-19 in the workplace) could not be achieved.

The Employees submitted a witness statement from a well-known professor of medicine with extensive expertise in vaccine research. That professor’s evidence was that the current COVID-19 vaccines do not prevent infection, and asserted that the Policy was not reasonable because Coopers’ decision to implement the Policy was based on incorrect science. The Employees also submitted that Coopers, as a large organisation, should have undertaken its own independent scientific studies into COVID-19 vaccination.

The FWC acknowledged ATAGI’s role as an expert body providing evidence-based advice on the administration of vaccines to the Commonwealth and the general public. While it is understandable that competing views may exist within the scientific community, this is not in itself a reason to doubt the reliability of ATAGI’s advice. In fact, ATAGI’s advice could be preferred, in that it comes from a panel of experts rather than a single expert. However, even if the FWC agreed with the expert’s findings in relation to the usefulness of vacines, it was noted that it was plainly reasonable for Coopers to rely on ATAGI’s advice in formulating its Policy, given their role as an expert body, and it was not necessary for Coopers to undertake the scientific research itself given that that work had already been completed by ATAGI.

Religious objection argument

The Employees also submitted that the direction to be vaccinated against COVID-19 was unreasonable because they had told Coopers that COVID-19 vaccination was contrary to their religious beliefs. The FWC found that Coopers had respectfully considered the requests for an exemption and concluded that the beliefs were genuinely held. However, Coopers determined that this matter did not outweigh the need to maintain a safe working environment for all employees for the greater good of the collective workplace.

Importantly, the FWC noted that is unfortunate that there may be occasions where an employee is required to choose between work and their personal beliefs. As a result, such situations should only arise with good reason. In this instance, Coopers had substantial and well-reasoned rounds for the decision it made, including that it had to comply with its work health and safety obligations, it had immunocompromised members of staff, any unvaccinated close contacts of a COVID-19 positive case were required to isolate longer than vaccinated close contacts were at the time (and thus remain away from work longer), and it was impractical for staff to socially distance at work.

Accordingly, the FWC held that there was a valid reason for dismissal. After considering the other relevant factors, the FWC was satisfied that the dismissals of the Employees were not unfair.

Take Home Messages

It is important to note that the FWC stressed that the Policy was reasonable given the facts and circumstances at the Coopers facility in late 2021 and early 2022. The door was left open to come to a different conclusion in respect of other policies in other workplaces at other times.

However, this case does indicate that it is reasonable for employers to rely on ATAGI’s advice when considering the merits of implementing a COVID-19 vaccination policy, and that it is not necessary for employers to conduct their own scientific investigations into the efficacy of COVID-19 vaccines.

This case also suggests that it is not necessarily unreasonable to require people to be vaccinated despite a religious objection, but it is still important that employers carefully and respectfully consider each employee’s position before coming to any decision about their ongoing employment.

For more specific information on any of the material contained in this article please contact Lincoln Smith on + 61 8210 1203 or lsmith@normans.com.au, Anastasia Gravas on + 61 8 8210 1331 or agravas@normans.com.au, or Annabelle Narayan on +61 8 8210 1292 or anarayan@normans.com.au.