In the midst of the COVID-19 pandemic, and the race to create a safe, effective vaccine for the virus, the issue of vaccination is firmly on the agenda. For instance, the CEO of Qantas, Alan Joyce, has recently caused controversy by suggesting that passengers on Qantas international flights might need to be vaccinated as a condition of boarding.

The Arnold Case

In the employment sphere, a recent unfair dismissal case, Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083 (Arnold Case), briefly considered whether an employer (a childcare centre) could give a "lawful and reasonable" direction to its employees to receive a flu vaccination.

The issue was only briefly considered because the unfair dismissal application was dismissed by the presiding member of the Fair Work Commission, Deputy President Asbury, as being out of time. One of the factors considered in determining the unsuccessful application for an extension of time was the merits of the case. The deliberation of the application therefore included a high-level consideration of the relevant principles and arguments relating to mandatory employer vaccination, offering an insight into the way other cases will possibly be determined, rather than representing a definitive finding.

Turning to the facts of the case, the employer, Goodstart Early Learning, issued a direction to its staff that they needed to have a flu vaccination by 29 May 2020. The Applicant refused to be vaccinated, resulting in the termination of her employment. This refusal was not on medical grounds.

In disputing the direction the Applicant sent various correspondence to the employer, including the following:

"I am Nicole Maree Arnold, in that I am Nicole-Maree of the blood of the House of Arnold, relying upon the King James Version of the Holy Bible, Romans chapter 2 verse 11, which states: "For there is no partiality with God. I am not the Government created entity or person, nor am I, a ward of the State. The Book of James Chapter 5 Verse 12 clearly states; "But above all my brethren, do not swear, either by heaven or by earth or with any other oath let your Yay be Yay and your Nay be Nay". Therefore I shall not be compelled to swear oaths, my word is my bond.
I am a woman, I am a non-combatant, non-belligerent civilian. I hold no title or Military Rank, including but not limited to: Miss, Ms or Mrs."

Her submissions to the employer were also described in paragraph 19 of the judgment as follows:

"In justification of her non-consent to being vaccinated, or to being compelled to vaccinate, the Applicant cited: The Forced Labour Convention, 1930, No. 29, Article 2; the Nuremberg Principles No III and IV being a Convention which Australia has Signed and Ratified; and/or the Commonwealth of Australia Constitution Act 1901, Commonwealth, Section 51, XXIIIA. The Applicant also cited the Universal Declaration of Human Rights, High Court judgements, articles found in medical journals and definitions drawn from a range of dictionaries and other sources in support of her position."

While, as noted above, the judgment related to an application for extension of time and, as such, did not address merit in comprehensive detail, it was nevertheless considered by the Commission.

At paragraph 30 of the judgment:

"The Applicant's submission address merit in some detail. A major feature of those submissions is the proposition that reasonable adjustments should have been made to accommodate the Applicant's refusal to be vaccinated. It is strongly arguable that the case law cited in the Applicant's submissions is irrelevant to the present case, on the basis that it deals with accommodation in relation to incapacity based on mental or physical disability. In the present case the Applicant did not refuse to be vaccinated for any apparent medical reason. It is also the case that the Respondent's policy in relation to mandatory vaccination provides for a process whereby employees who have medical grounds for refusing to be vaccinated can seek accommodation in relation to their circumstances. The Applicant does not appear to have availed herself of this process as part of her refusal to consent to vaccination and it is arguable that she cannot claim that reasonable accommodation should have been made when she did not seek such accommodation on reasonable grounds."

Deputy President Asbury offered some interesting observations in relation to an employer's right to mandate vaccination in this situation (at paragraph 32):

"While I do not go so far as to say that the Applicant's case lacks merit, it is my view that it is at least equally arguable that the Respondent's policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason. 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."

Mandatory COVID-19 Vaccination for Employees?

When a COVID-19 vaccine becomes available, will employers be able to mandate that their employees be vaccinated?

The answer to this question will (as always) depend on the circumstances of the case and whether, in those circumstances, the direction from the employer to the employee to be vaccinated for COVID-19 is 'lawful and reasonable'.

A direction to an employee to be vaccinated is not to be made lightly. Vaccination is a physically invasive procedure. It is analogous to a direction that an employee subject themselves to certain forms of drug testing, such as urine, saliva or blood testing, that can be similarly invasive. As well as its invasive aspect, vaccination also involves the injection of a substance into the body.

As such, if an employer is to mandate that employees be vaccinated for COVID-19, they need to justify the direction. The employer will need to show that the vaccination is necessary for the employee to perform the inherent duties of their position safely.

In ordinary times, for many positions this would be a difficult, if not insuperable, hurdle for employers to jump. For example, while there are some situations (primarily in a medical or care context) where a direction for an employee to have a flu vaccination will be lawful and reasonable, in most situations it could not be justified.

Given how infectious COVID-19 is, and its often pernicious impact on those afflicted, it is likely that a wide range of employers will be able to mandate COVID-19 vaccinations for staff, subject to genuine medical/health exemptions. (In such cases, employers will need to consider whether reasonable adjustments can be made. Ultimately, however, it is possible some employees might not be able to perform the inherent requirements of their position safely due to an inability to be vaccinated for COVID-19.)

Some of the arguments employers might cite in support of a direction for employees to be vaccinated for COVID-19 include:

  • It is an important measure in creating a 'COVID-19 safe' work environment (just like directions relating to masks, social distancing and sanitising);
  • It provides protection against staff members infecting each other and instils confidence among staff that the risk of infection from another employee is being actively minimised; and
  • It provides protection against visitors to the workplace (including customers/clients, suppliers and external service providers) being put at risk from infection.

While much attention has been given to whether the Federal Government might seek to mandate COVID-19 vaccinations, and the prospect of Qantas demanding it for international passengers, the prospect of employers possibly mandating such vaccinations has been largely overlooked.

To be clear: it is not about employers acting as 'role models', 'good corporate citizens' or undertaking a broader community service. It boils down to an analysis of whether the employer, having regard to the nature of its business and the duties of its employees, is justified, on genuine safety grounds, issuing (and enforcing) such a direction.

Ultimately, the issue of workplace safety is far more likely to be relevant in determining whether an employer has a right to mandate COVID-19 vaccination for employees than more esoteric human rights principles. It is unlikely arguments against an employer direction to be vaccinated based on grandiose concepts such as the Australian Constitution, international conventions or the Magna Carta (which always seems to get a run) will find favour.

While employers will need to carefully consider how employees with medical or health issues preventing vaccination will be treated, employees who have conscientious objections to vaccinations or are part of the 'anti-vax' movement, and who refuse to be vaccinated on that basis alone, might find themselves choosing between their beliefs and continued employment.

It is noted, at time of writing, there are various flu vaccination cases on foot before the Fair Work Commission. If they proceed to judgment it will be interesting to see what impact they have on the rights of employers and employees in this challenging but interesting area.

For furhter information, please contact:

Michael Byrnes, Partner
Phone: +61 2 9233 5544

Emily Capener, Solicitor

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.