In brief - The coronavirus vaccine roll out across Australia in the coming months raises important questions as to whether employers can and should make vaccination mandatory for their employees.
Read our update published on 26 February 2021 in which we look at the most recent government guidance on this issue.
This article considers the current state of the law and the legal risks that arise when implementing a vaccination policy at work.
Given the high-risk nature of this area, it is clear that there is no one size fits all answer.
Important questions must be asked as to whether employers can and should make vaccination mandatory and what may constitute a reasonable basis for refusal.
Detailed risk assessments should be carried out on the implications of both mandatory and non-mandatory approaches to vaccination.
Employer expectations should be clearly set out in an appropriate policy.
Can vaccination be an inherent requirement of employment?
To date, only Victoria has addressed the question of mandatory vaccination from a legal perspective, with the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020 requiring vaccination against "specified diseases" of all workers employed or engaged in public hospitals, denominational hospitals and health service establishments.
In addition, public health orders in New South Wales, Western Australia, South Australia, the Northern Territory, the Australian Capital Territory and Tasmania require workers in residential aged care to be vaccinated against influenza where a vaccination is available, unless an employee has a medical contraindication to vaccination.
Interestingly, despite implementing the above Health Services Amendment Act, Victoria does not require mandatory influenza vaccination in residential aged care (rather, the Victorian Government recommends that residential aged care providers encourage vaccination against influenza), nor is mandatory influenza vaccination a requirement in Queensland. This discrepancy highlights the uncertainty that exists in declaring COVID-19 vaccination an inherent requirement of employment.
The question has not yet been definitively answered by a court or tribunal. However, where the influenza vaccination has been considered by members of the Fair Work Commission (FWC), the views expressed suggest that a vaccination may be an inherent requirement of employment, subject to the nature of the role and workplace.
Fair Work Commission's preliminary observations on vaccination as an inherent requirement of employment
In Glover v Ozcare  FWC 231 (Ozcare), an in-home care worker alleged that she was unfairly dismissed after being informed that she could not return to work without receiving the influenza vaccine due to the COVID-19 pandemic. The 64-year-old worker alleged that she could not be vaccinated due to allergies, having had a severe adverse reaction after getting an influenza vaccination at age seven. She had worked for her employer since 2009 without being vaccinated. Commissioner Hunt of the FWC held that, despite the employer's assertions that the worker was absent from work on an indefinite period of unpaid leave, in reality the worker had been dismissed.
Having found that the worker had been dismissed, Commissioner Hunt referred the question of whether that dismissal was unfair for further hearing, but commented that:
…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.
Commissioner Hunt's statement serves as a warning to employers that decisions about requiring vaccinations must be made on a case-by-case basis. However, the implication is that there are at least some circumstances in which vaccination is an inherent requirement of an employee's role and an employee who refuses vaccination could therefore be validly dismissed, regardless of their reason for refusal.
The Ozcare decision follows Arnold v Goodstart Early Learning  FWC 6083 (Goodstart), in which the FWC declined to exercise its discretion to allow an unfair dismissal claim to proceed where the application was lodged one day after the permissible 21 day period for seeking an unfair dismissal remedy. Goodstart concerned the dismissal of a child care worker in August 2020 after her employer made influenza vaccination mandatory (but with a process for employees to seek an exception on medical grounds).
Deputy President Asbury of the FWC noted that she did "not consider that the merits of the Applicant's case are so apparent" that extending the application deadline was justified, ostensibly in part because Ms Arnold did not allege any medical reason for refusing vaccination. Asbury noted:
Prima facie the Respondent’s policy is necessary to ensure that it meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/or medical conditions. It is also equally arguable that the Applicant has unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position, which involves the provision of care to young children and infants.
These decisions tend to suggest that the FWC is at least sympathetic to the argument that vaccination can be an inherent requirement of a role.
Legal risks of mandating coronavirus vaccine for employees
In the absence of state or federal government guidance, or any clear judicial statement on the circumstances in which a COVID-19 vaccination could be an inherent requirement of an employee's role, employers should be cautious in mandating a COVID-19 vaccine for employees.
Unfair dismissal claims
As recently as last week the Federal Government signalled its view that vaccination would not be mandatory, including for workers in higher risk sectors such as aged care. An employer may therefore face difficulty defending an unfair dismissal claim on the basis that vaccination is an inherent requirement, especially where there are other measures available for minimising the risk of infection from COVID-19 in the workplace (for example, the use of Personal Protective Equipment) and employees safely performed their roles for the majority of 2020 using only those measures. Just because there may be a safer method of working this year, does not necessarily mean that last year's methods are now unsafe and that vaccination is therefore an inherent requirement.
There is also a risk of exposure to discrimination claims if an employee declines the vaccine based on medical or religious grounds and is penalised or dismissed.
The Fair Work Act 2009 (Cth) (Act) prohibits the taking of adverse action against an employee or prospective employee because of factors including disability and religion. "Disability" includes "the presence in the body of organisms capable of causing disease or illness". Employers could mitigate the risk of discrimination claims by including a carve-out in vaccination policies for those with a medical or religious reason for refusal.
Importantly, the Act allows discriminatory action to be taken if it is taken "because of the inherent requirements of the position". If the courts, the FWC or governments provide further guidance as to when vaccination is an inherent requirement, employers could face a lower risk of a discrimination claim in dismissing an employee for refusal to vaccinate.
Workers' compensation claims
There may be a risk of workers' compensation claims from employees who experience adverse side effects from the COVID-19 vaccine if the vaccine is taken at the employer's direction, in circumstances where the vaccine is not otherwise mandatory.
Again, exceptions for employees with a medical contraindication against vaccination will likely assist in mitigating the risk of such claims.
Legal risks of not making coronavirus vaccination mandatory
Employers have obligations regarding health and safety in the workplace and those obligations extend not only to employees but to other visitors or persons present in the workplace.
Arguably, once a COVID-19 vaccine becomes available, the best way to ensure health and safety in the workplace, so far as is reasonably practicable, would be to ensure that all employees are vaccinated. Further, if the vaccine is not mandatory, there could be the potential for constructive dismissal claims by vaccinated employees (i.e., "I had no choice but to resign because my employer wouldn't make my colleague get vaccinated").
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.