Can an employer require their employees to get the COVID-19 vaccine?

This article was updated 8 October 2021 by McLachlan Thorpe Partners

The most recent update by Fair Work Australia was provided on 4 October 2021, and stated that employers cannot require their staff to be vaccinated against COVID-19 unless one of the following applies:

1. A law or regulation has been passed which enables employers to require employees be vaccinated (current examples of this are public health orders for aged care workers and health care workers);
2. Terms are written into contracts or enterprise agreements which require employees to be vaccinated; or
3. An employer gives a lawful and reasonable direction requiring staff to be vaccinated against COVID-19. Whether a direction is lawful and reasonable is fact dependent and assessed on a case-by-case basis.

Fair Work Australia has warned that terms in contracts and enterprise agreements which require staff to be vaccinated against COVID-19 could be considered contradictory to anti-discrimination laws.

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The Australian Government has confirmed that the COVID-19 vaccine will not be made mandatory in Australia. This has raised a number of questions for employers across Australia, such as:

• What does this mean for an employer’s obligations under the Workplace Health and Safety Laws?
• Can employers request employees provide evidence of vaccination?
• Can employers implement policies requiring employees be vaccinated?
• Can vaccinated employees refuse to work with unvaccinated employees?

Workplace Health and Safety Obligations of Employers

Employers in Australia have a duty under the Workplace Health and Safety Laws to eliminate, or if not reasonably practicable, minimise the risk of exposure to COVID-19 in the workplace. Actions taken by workplaces to eliminate or minimise risks are referred to as “control measures”.

The COVID-19 vaccine is a reasonably practicable control measure to manage the risks of COVID-19 in the workplace; however it is not the only control measure which can be implemented. Other control measures employers can implement include:

• Reducing direct contact between staff in the workplace
• Ensuring 1.5 meter physical distances are adhered to in the workplace
• Allowing flexible working arrangements, such as work from home arrangements
• Requiring face masks be worn when in the workplace; and
• Ensuring regular cleaning and disinfecting of the workplace environment

Safe Work Australia currently suggests that most workplaces will not need to make vaccination mandatory in order to be compliant with Workplace Health and Safety Laws. This will, however, be dependent on the workplace and the nature of the work undertaken.

Certain workplaces may place workers at a high risk of exposure to COVID-19 in the workplace. Safe Work has said that in these circumstances, employers may be able to require workers be vaccinated. A current example of this in Australia, is the mandate for all residential aged care workers to be vaccinated.

Can an employer require evidence of vaccination?

Generally, an employer will not be able to require employees to provide evidence of their vaccination status. An individual’s vaccination status is sensitive information which is protected under the Privacy Act. Employers will need to seek consent from employees to collect their vaccination status, and the collection of that information needs to be reasonably necessary to the employers’ functions or activities.

Can employers impose mandatory vaccination policies in the workplace?

In general, employers have the right to direct their employees, and employees have a duty to obey and comply with any lawful and reasonable directions which are given by an employer or contained in the employers’ policies and procedures. A breach of this duty by an employee can amount to a breach of contract, which may be a valid reason for dismissal.

This raises the question – is a policy requiring staff to be vaccinated against COVID-19 a lawful and reasonable direction?

There have recently been two cases before the Fair Work Commission which consider the validity of mandatory vaccination policies against influenza. The Fair Work Commission set out in these cases some of the considerations courts may apply when assessing the validity of an employers’ directions to its employees to get the COVID-19 vaccine, and whether refusal to do so is grounds for dismissal.

             Ms Nicole Maree Arnold v Goodstart Early Learning Limited t/a Goodstart Early Learning         [2020] FWC 6083

• In April 2020 the employer (Goodstart) introduced an immunisation policy, requiring all staff receive the influenza vaccination unless they had a medical condition which made it unsafe for them to do so. The employee, Ms Arnold, objected to having the influenza vaccination, owing to a “sensitive immune system”. The employee provided a medical certificate which the employer thought was insufficient to support the objection and her employment was terminated for her failure to be vaccinated.
• The Fair Work Commission found the dismissal to be valid, by virtue of the employee’s failure to comply with the lawful and reasonable direction of the employer to be vaccinated against influenza. The decision particularly turned on Goodstart’s Workplace Health and Safety duty to ensure the health and safety of all its child care workers, and the duty to ensure the children were not put at risk from work carried out by the childcare workers, and some additional statutory obligations as a childcare provider.
• The Fair Work Commission had regard to the fact that the childcare environment exhibited unique characteristics, given the nature of the work. Social distancing is not as practical as in other industries; children have not developed hygiene skills, nor do they have an immune system comparable to an adult. Childcare workers are also subject to biological hazards on a routine basis from children, which the Fair Work Commission said create “a veritable melting pot in which to transmit a virus”. If there was no mandatory vaccination, other controls which could be implemented would be impractical, ineffective or subject to human error.

Ms Maria Corazan Glover v Ozcare [2021] FWC 231

• Ms Glover was employed by Ozcare as a care assistant. In April 2020, Ozcare amended its immunisation policy in response to the QLD Chief Health Officers directions, requiring all employees be vaccinated against influenza.
• Ms Glover refused to get the vaccination as she had experienced an anaphylactic reaction to it in the past. Ozcare refused to roster Ms Glover or permit her to enter the premises. Ms Glover commenced unfair dismissal proceedings with the Fair Work Commission.
• The Fair Work Commission ultimately found that the dismissal was not unfair as Ozcare had a lawful and reasonable basis to mandate the vaccination of all employees who engage with clients. Given the high risk nature of aged care work, especially dealing with patients who would be particularly susceptible to influenza, the FWC found it was reasonable to direct employees to be vaccinated to protect the safety of clients.

These cases confirm that a direction to be immunised (against influenza) may constitute a lawful and reasonable direction. It may be reasonable to assume that the Fair Work Commission will adopt a similar stance in relation to directions to employees to be immunised against COVID-19.

Can vaccinated employees refuse to work with unvaccinated employees?

This is an area which is likely to be subject to scrutiny by the Fair Work Commission if legislation is not passed to provide clarification.

Currently, it is highly unlikely that vaccinated employees will have any legal right to refuse to attend work with an unvaccinated employee. If they refuse to attend work, employers can direct them to attend work or face disciplinary action for refusing a lawful and reasonable direction.

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