In the absence of a Public Health Order mandating the COVID-19 vaccine, whether employers can require employees to be vaccinated against the disease is certainly a complex question.
The Fair Work Commission (FWC), in a highly anticipated decision, has provided some guidance regarding what employers should consider when issuing directions to be vaccinated against influenza.
Barber v Goodstart Early Learning  FWC 2156
Barber was a Lead Educator of Goodstart Early Learning – a non-profit childcare centre. At the height of the COVID-19 pandemic, Goodstart implemented a mandatory immunisation policy directing staff to receive the flu vaccine. The policy exempted staff with medical conditions which made it unsafe for them to vaccinate.
Barber refused the vaccine on the basis of having a sensitive immune system and having previously had an allergic reaction to it (notably, 11 years prior). Barber's medical certificate, in support of her objections, was rejected by Goodstart (and later by the FWC). Goodstart terminated her employment for failing to be vaccinated and meet the inherent requirements of her role.
In fact, the FWC held that the vaccination did not amount to an inherent requirement of the employee's role. Despite this, the direction to be vaccinated was lawful and reasonable, and accordingly, a valid reason for dismissal when disobeyed.
What makes a mandatory vaccination lawful and reasonable?
A cocktail of reasons rendered the flu immunisation policy both lawful and reasonable, including:
- legal obligations: The Work Health and Safety Act 2011 (Qld) required Goodstart to ensure, as far as reasonably practicable, the health and safety of its childcare workers and the children in its care. Goodstart also had unique statutory obligations requiring it to prevent the spread of infectious diseases and to implement policies accordingly. On this point, the FWC highlighted that Goodstart operated in a highly regulated industry, where, due to the vulnerability of children, safety was of paramount importance. Goodstart could also be legally responsible for the transmission of infectious diseases within its centres. For those reasons, it was not only logical but necessary for Goodstart to have stringent health and safety procedures in place – mandatory vaccination was consistent with managing those risks
- government recommendations: Numerous government bodies nationwide encouraged and advocated for the flu vaccination to childcare sector staff. These recommendations would inform a reasonable employer that mandatory vaccination would be appropriate
- vaccine efficacy and alternative control measures: The medical evidence demonstrated the flu vaccine directly reduced the risk of flu infection to those staff and children whom Goodstart owed a duty of care. Additionally, alternative control measures such as social distancing, wearing personal protective equipment (PPE) and isolation practices would be impractical and ineffective to supplant mandatory vaccination
- appropriately implemented immunisation policy: Goodstart's vaccination policy was reasonably and appropriately adapted – it did not require employees to be vaccinated if they had a valid medical exemption. Each medical exemption was assessed on a case-by-case basis by a panel comprised of legal, safety, HR and operational experts. The vaccine was also free for staff
- the immunisation policy was within the scope of the employee's contract and not unlawful.
Implications for employers – what about the COVID-19 vaccine?
While mandatory flu immunisation was deemed lawful and reasonable in these circumstances, it is not a one-size-fits-all approach. Whether employers can direct employees to be immunised from influenza depends on the industry of the employer and the role of the employee. The FWC has made fervently clear that the environment in which Goodstart operated was pivotal in determining whether the mandate was reasonable. Further, it cautioned that mandatory vaccination in different industries could not be contemplated simply based on the reasons discussed. To do so would be "audacious, if not improvident".
The factors considered in this case are a good starting point for employers contemplating a flu immunisation policy. Accordingly, where an employee works in an environment with distinct risks, including caring for vulnerable people, where the risk of disease infection is high or more dangerous, or where occupational health and safety regulation is stringent, mandatory immunisation may be reasonable. Nevertheless, these factors must be properly balanced against the employer's ability to otherwise manage those health risks. For example, by implementing strict hygiene and sick leave procedures, observing social distancing and the use of PPE.
Outside of these circumstances, a direction to take the flu vaccine – or the COVID-19 vaccine – is unlikely to be viewed as reasonable. Employers must also be cognisant of their obligations under discrimination legislation – an issue which we previously discussed here. In relation to the COVID-19 vaccine, the FWC has treaded carefully to avoid setting a precedent for blanket mandatory immunisation.
This case is a persuasive reminder that while a mandatory vaccination policy can be lawful and reasonable, employers must be able to demonstrate its need and practicality. With the COVID-19 vaccine rollout still underway, employers should seek formal advice as to whether mandatory vaccination is appropriate in their circumstances. Given the concerns surrounding the safety of the COVID-19 vaccine, mandatory vaccination remains uncertain and uncharted territory for many employers.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.