Australia: Can an employer force an employee to obtain a COVID-19 vaccination?

Although he initially stated that COVID-19 vaccines would be 'as mandatory as possible', Prime Minister Scott Morrison has since assured the public that the vaccination will be voluntary.

Despite the rhetorical backflip, many believe that in practical terms, those who wish to live their lives with a semblance of normality will gradually be compelled to obtain these injections.

One area in which controversy has arisen is the workplace, with some of the view that employers should be able to compel their workers to obtain COVID vaccinations for the protection of themselves, their colleagues and the business, while others assert that employers are not justified in forcing employees to inject a new drug into their bodies – especially one with reported side-effects for which there has been changing health advice and the government has given manufacturers immunity from civil claims.

Government has already made it compulsory for aged care workers, quarantine and airport staff, and some health workers to obtain a COVID-19 vaccination in order to continue with their employment.

And recently, food processing company SPC foreshadowed requiring its employees to be vaccinated.

But what does the law say regarding compelled vaccinations for the workplace?

And has the issue been tested before a court or tribunal of law?

For a direction to be enforceable in the workplace, it must be 'lawful and reasonable'.

The Fair Work Ombudsman and employment lawyers have made clear that whether a direction is lawful and reasonable is "highly fact-dependent"; in other words, it depends on the facts of the particular case.

The determination involves a number of competing considerations including the protection of other workers and the workplace, and an individual's right to choose what they put into their body.

Some of the factors that may be relevant to the determination include:

1. Whether a specific law or industry provision requires an employee to receive a certain vaccination or a vaccination for a certain reason/s,
2. Whether an enterprise agreement or employment contract contains vaccination provisions and, if so, the nature and applicability of those provisions to the present situation,
3. Whether a vaccination direction is discriminatory,
4. The nature of the specific place of employment and role of the employee, including the degree of risk to others of not vaccinating,
5. Whether there is an option to work remotely,
6. The subjective circumstances of the employee, including any general or specific risk of receiving a vaccination, and personal beliefs, and
7. The ability of the vaccine to meet the reasons for the direction, and
8. Whether the reasons for the direction can reasonably be met by alternative means, such as by physical distancing and/or wearing face coverings, and
9. The availability of the directed vaccination.

There is, therefore, no clear-cut answer to the question of whether a vaccination direction is lawful – it depends on the specific set of circumstances.

That being so, it may be helpful to turn to cases that have been referred for determination.

A number of employees have brought claims before the Fair Work Commission (FWC) on the basis of being unfairly dismissed over the refusal to obtain a COVID-19 vaccine.

None of these have yet succeeded, but it must be borne in mind that they related to employment which was vulnerable to the spread and impact of communicable diseases.

Three of these cases are:

Ms Maria Corazon Glover v Ozcare (U2020/13450)

On 22 January 2021, the FWC delivered a decision relating to an unfair dismissal claim brought by a former employee of an aged-care and retirement provider who refused to obtain a COVID-19 vaccine.

The employer, Ozcare, had implemented an influenza vaccination policy for over 10 years.

The employee, Ms Glover, had worked for the business since 2009 and was required to visit predominantly elderly people at their homes and provide them with administrative care. She did not work at her employer's aged care facilities.

Each year before 2020, Ms Glover had completed an employee vaccination declination form stating she was allergic to vaccinations. Her employer accepted these each year, and permitted her to keep working without being vaccinated.

In 2020, however, Ozcare introduced a policy of mandatory vaccination for COVID-19 without provision for a medical exception.

Ms Glover refused to obtain a vaccination, stating it could result in "anaphylaxis... [which] is a potentially life-threatening allergic reaction". However, the 64-year old admitted it was 57 years since she received advice in that regard.

She undertook to wear personal protective equipment, including a face mask at all times during work.

Commissioner Hunt of the FWC was called on to make a jurisdictional determination, but before doing so considered the merits of the unfair dismissal claim itself.

While acknowledging that the potential for a serious, adverse consequence to the COVID-19 vaccine was 'a very concerning proposition', Commissioner Hunt proceeded make the significant finding that:

"In my view, each circumstance of the person's role is important to consider, and the workplace in which they work in determining whether an employer's decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction. Refusal of such 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."

The decision suggests that the requirement to vaccinate can amount to an essential requirement that overrides any competing considerations.

It could be taken to mean that employees in places that are particularly susceptible to the spread and/or impact of COVID-19 can be fairly dismissed for refusing to obtain a vaccine, regardless of any potential adverse affects or other personal factors.

Ms Bou-Jamie Barber v Goodstart Early Learning (U2020/11916)

On 21 April 2021, the FWC delivered its decision relating to an unfair dismissal claim brought by a former employee of a childcare centre who refused to obtain a COVID-19 vaccine.

The employer, Goodstart Learning, operated more than 750 childcare centres throughout Australia and introduced a policy of mandatory vaccination in early 2020 following the initial outbreak of COVID-19.

The policy required employees to obtain a vaccination unless they had a reasonable and valid excuse not to do so.

The employee, Ms Barber, was required to work with children under the age of 5 years.

She claimed to have a compromised immune system and was concerned about the effects of the vaccine on her health.

In determining whether direction to vaccinate was lawful and reasonable, Deputy President Lake considered a range of factors, including that:

1. The government recommended vaccinations for childcare workers,
2. The employer implemented a vaccination policy,
3. The vaccine was available and funded by the employer,
4. The employer allowed time and provided consultation for the vaccination,
5. The employer had a duty of care towards the children in its care and an obligation to protect them against the spread of infectious diseases,
6. Young children were at significant risk of infection due to poor hygiene and an under-developed immune system,
7. Very young children could not be vaccinated, and
8. The employee only provided anecdotal and sparse medical evidence of her claims of a sensitive and compromised immune system.

The direction was therefore lawful and reasonable, and the dismissal was not unfair.

Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818 (29 April 2021)

On 29 April 2021, the FWC delivered a decision relating to an unfair dismissal claim brought by a former receptionist at an aged-care facility refused to obtain a COVID-19 vaccine.

The employer, Sapphire Coast Community Aged Care, said it was acting pursuant to government advice, and what it considered to be the requirements of a New South Wales government public health order, by mandating a COVID vaccine for all of its workers.

It noted that the state's health minister had stated publicly that the only acceptable reasons for not having the vaccine in the context of aged care work were proof of anaphylaxis or Guillain-Barre Syndrome following vaccination, or being on check point inhibitors for cancer.

The employee, Ms Kimber, claimed she had suffered adverse effects to a work mandated influenza vaccine in 2016, and refused on that basis to have a COVID vaccine.

She provided a letter from a Chinese medicine practitioner who started treating her with anti-viral and immune boosting herbs within 10 months of the 2016 vaccine.

The practitioner said she would 'prefer' that her client 'not have the flu vaccination'.

She also provided a letter from a general practitioner which stated that Ms Kimber,

'has a medical contraindication to the Influenza Immunization. She has had a severe allergic reaction to the flu shot in the past and has been advised not to have it again'.

Commissioner McKenna was critical of the medical documentation, noting the delay between the 2016 vaccination and initial consultation with the Chinese medical practitioner, as well as the fact the GPs letter was in the form of a 'letter of support', and that the GP did not review medical documentation nor refer Ms Kimber to an immunologist.

The Commissioner was of the opinion that Ms Kimber's attendance at work without having a COVID vaccine could have amounted to a failure to comply with a public health order, and the refusal therefore rendered her incapable of doing her job.

The Commissioner further noted that her receptionist duties could not be fulfilled externally, ultimately finding that the dismissal was not harsh, unjust or unreasonable.

It is likely that many more cases will be determined by the Fair Work Commission, as organisations heed the Prime Minister's statement yesterday that "[b]usinesses have a legal obligation to keep their workplaces safe and to eliminate or minimise so far as 'reasonably practicable' the risk of exposure to COVID-19."

The statement can be viewed as warning which affectively shifts the vaccination burden onto employers. It is also an interesting statement, given that constitutional questions are being raised about whether government has the power to compel individuals to obtain vaccines – whether by formal legal requirement or in practical terms by preventing the unvaccinated from living normal lives due to unreasonable restrictions.

These are testing and uncertain times, and only time will tell how the whole vaccination saga plays out.

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