Can employers enforce mandatory vaccinations in the workplace?

With the roll-out of COVID-19 vaccines commencing in Australia, the legality of whether employers can require employees to be vaccinated against COVID-19 is a trending topic of discussion.

While this discrete legal issue has not yet been tested, a similar issue was the subject of a recent decision of the Fair Work Commission (the FWC) in Maria Corazon Glover v Ozcare [2021] FWC 231 (the Decision).

The Decision concerned a jurisdictional objection raised by Ozcare against Ms Glover’s unfair dismissal application. The Commission considered whether Ms Glover was ‘dismissed’ from her employment within the meaning of section 386 of the Fair Work Act 2009 (Cth) (the FW Act). The context surrounding the potential dismissal was Ozcare’s decision to enforce a requirement that employees who were unvaccinated against influenza could not be permitted to work or enter its premises.

Facts

Ozcare provides aged care, retirement living and support services to the community, among other things. Ms Glover was employed as a Care Assistant of Ozcare since 2009, visiting people in their homes and administering care. Importantly, Ms Glover did not work within Ozcare’s aged care residential facilities.

Ms Glover had an influenza vaccination at the age of seven in the Philippines and had an adverse reaction, suffering anaphylaxis immediately after receiving the vaccine.

Ozcare implemented an annual Influenza Vaccine program. Each year, Ms Glover completed the ‘Ozcare Employee Influenza Vaccine Declination Form’, stating that she declined to receive the influenza vaccination due to her allergies. Ozcare permitted Ms Glover to continue in her role throughout that time.

However, during the COVID-19 pandemic, Ozcare introduced a mandatory influenza vaccination within its entire workforce. Ms Glover refused to participate in the mandatory influenza vaccination program on the basis that she is allergic to the vaccination.

Ozcare enforced its requirement that unvaccinated employees could not be permitted to be rostered to work or enter its premises, resulting in Ms Glover having to exhaust her paid leave entitlements. It was Ozcare’s position that it was an inherent requirement of Ms Glover’s role that she be immunised annually against influenza.

Ms Glover was advised by Ozcare on 28 August 2020 that her paid leave entitlements would run out on 4 October 2020. Ozcare’s view was that Ms Glover was on unpaid leave thereafter for an indefinite period and that Ms Glover remained an employee of Ozcare. On the other hand, Ms Glover’s position was that she was not informed that she was on unpaid leave and that she had been dismissed from her employment effective 4 October 2020.

Decision

A person is dismissed within the meaning of section 386 of the FW Act if the person’s employment with his or her employer has been terminated on the employer’s initiative.

The FWC was unsatisfied with Ozcare’s position that Ms Glover would be on an indefinite period of unpaid leave due to the ‘impasse’ between the parties because in effect, Ms Glover could be held in limbo for months and years while Ozcare reviewed its position in relation to allowing Ms Glover to return to work unvaccinated.

The FWC determined that the actions of Ozcare in refusing to roster Ms Glover to work when her paid leave was exhausted meant that Ms Glover was without work for the predicted future. For that reason, the FWC held that Ms Glover’s employment came to an end on 4 October 2020 when Ozcare refused to roster her for work when she was willing and able to do so.

In respect of the legality of employers requiring employees to be vaccinated, the FWC noted that:

• Each circumstance of a person’s role is important to consider, in addition to the workplace in which they work;
• The refusal of an employee to comply with an employer’s direction to be vaccinated may result in termination of employment, regardless of the employee’s reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector;
• There will likely be certain scenarios where employers can decide at their election that vaccinations of their employees will be an inherent requirement of the job.

Given that the FWC decided that Ms Glover had been dismissed from her employment, the matter has now been referred to a hearing to determine the substantive issue of whether the dismissal of the employee for refusing to be vaccinated was harsh, unjust or unreasonable.

Federal Government’s COVID-19 Vaccination Program

From the Federal Government’s Australian COVID-19 Vaccination Policy, it states that “while the Australian Government strongly supports immunisation…it is not mandatory and individuals may choose not to vaccinate.”

However, the Government has stated that this may vary in respect of border entry/re-entry requirements.

Furthermore, the roll-out of the vaccination program will be coordinated by the Australian Government with each State and Territory Government. State and Territory Governments are each responsible for authorising under State and Territory legislation, the selected workforce identified in the Commonwealth and State and Territory implementation plans to possess and administer COVID-19 vaccines.

As such, moving forward employers should be guided by the advice and directions of the State Government before reaching a company-wide position on mandatory vaccinations. For example, under the Emergency Management (Residential Aged Care Facilities No 25) (COVID-19) Direction 2021, a person is prohibited from entering or remaining on the premises of a residential aged care facility in South Australia if the person has not been vaccinated against 2020 seasonal influenza. A similar direction may be made by the South Australian Government in respect of the COVID-19 vaccination.

Take Home Messages

It is possible that a direction for employees to be vaccinated against COVID-19 would be lawful and reasonable if it is directed to employees who are deemed ‘essential workers’, employees who work in high-risk industries or workplaces or to employees who work in premises where social distancing cannot be achieved. From Australia’s COVID-19 Vaccine National Rollout Strategy, it has implemented a three-phase process. From Phase 1, it has specifically identified high-risk workers such as frontline health care workers, aged care and disability care staff, other healthcare workers and meat processing staff, to be in the first phase of receiving the COVID-19 vaccine.

If it is an inherent requirement of an employee’s role to be vaccinated against COVID-19 (which will likely be the case for the employees who fall within the ‘Phase 1’ categories mentioned above), the direction of an employer for the employee to be vaccinated will be lawful and reasonable. If an employee refuses to comply with that direction, the employer should take into account the reasons for refusal before considering the future of the employee’s employment, including whether alternative work can be provided.

It is important that employers consider whether a mandatory vaccination direction is both lawful and reasonable. Whether an employer’s direction that its employees be vaccinated against COVID-19 or influenza is lawful and reasonable will depend on the facts of each scenario. It may well be that a certain category of employees within an organisation can lawfully be required to be vaccinated, while others cannot, depending on their roles. Employers need to be cognisant of the adapting landscape as well as be aware of any specific legislated directions that may affect their industry.

For more information please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au or Ganesh Krishnan on +61 8 8217 1395 or gkrishnan@normans.com.au.