Can Employers Force Employees to be COVID-19 Vaccinated?

As the Federal Government has recently announced, the COVID-19 vaccination rollout will commence in mid to late February, a full month ahead of the previously foreshadowed commencement schedule at the end of March 2021. As business and industry of all sizes has suffered during the pandemic, not to mention the complete shutdown of international air travel, many Australians, if not looking forward to the jab itself, are looking forward to a gradual return to normalcy and it is increasingly apparent that normalcy might only return once the majority of the population have been vaccinated.

Whilst not making the vaccine compulsory, the Prime Minister has been reported as stating that the vaccine is “as mandatory as you can possibly make it”, suggesting that pressure will be brought to bear for everyone residing in Australia to receive the vaccine (unless medically exempted). In this client alert we examine how employers will react to this ‘unofficial mandate’ and whether a direction by an employer to receive the COVID vaccine can justifiably be considered a lawful and reasonable direction.

Whilst the Federal Government is yet to finalise its vaccination schedule, it is anticipated that the vaccine will be rolled out in 5 stages. The first stage (Stage 1a) will include quarantine and border workers, frontline health workers, and aged care and disability staff and residents. The second stage (Stage 1b) will include anyone over 70 years old, other healthcare workers, younger adults with an underlying condition and high-risk workers (like emergency services personnel and meat processing workers).

Following that, Stage 2a covers Aboriginal and Torres Strait Islander people who are between 18-54, along with Australians over 50 years old and other critical high-risk workers and Stage 2b covers the rest of the adult population. Finally, Stage 3 will be for children but only “if recommended”.

The Federal and State Governments have broad powers to make enforceable public health orders in times of public health emergency. We have seen the examples of this with the Federal Government shutting down the Australian border and the States with lockdowns, curfews, border restrictions and enforced wearing of face masks. To that end, it is arguable that the Federal and State Governments do possess sufficient power to make COVID vaccination mandatory for anyone without a medical exemption. Health Minister Greg Hunt has made it clear that anybody residing in Australia seeking to be vaccinated, should receive the vaccine in 2021, but stopped short of indicating that the vaccine will be mandatory. However, his office has suggested that the Federal Government is considering an amendment to the Australian Immunisation Register Act 2015 (Cth) to mandate reporting of all vaccinations to the Register.

Can Employers Direct Employees to Receive the COVID Vaccination?

There are certain industries and occupations where, irrespective of government mandate, the directive to vaccinate is somewhat imperative. For example, even prior to COVID, it was mandatory for employees working in aged care facilities to participate in an annual flu vaccination programme to comply with the Aged Care Quality Standards. It therefore stands to reason that employees working in aged care will be required to receive a COVID vaccination as an inherent requirement to perform their duties.

Likewise, some airlines have flagged that they will not accept fares from passengers who have not received a COVID vaccination, so it also stands to reason that they will institute workplace policies that require employees to receive the vaccine as an inherent requirement to perform their duties. Such policies will likely be difficult to dispute as airlines, their staff and passengers may fly into other jurisdictions where a condition of arrival is to have received a COVID vaccination. Similarly, the Federal Government may also make the receipt of a COVID vaccination a condition of entry into Australia (hence why it is considering it mandatory to report all vaccinations to the Australian Immunisation Register).

However, what about other industries and occupations where no such guidance exists as to the requirement to receive the vaccine? For example, where employees have close contact with customers, prepare food for patrons at a restaurant or eatery, or are involved in a butchery. Is it reasonable for an employer to direct their employees to obtain the COVID vaccine as soon as it is available to them? Employers have a right to issue lawful and reasonable directions to employees. Furthermore, they have a lawful obligation to ensure a safe working environment, and employees have an obligation to assist their employer to provide that safe working environment. Employers are also required to take “all reasonable steps to ensure the health and safety of their employees, customers and other workplace participants”.

It is also understandable that many businesses will want to ensure the ability to continue trading uninterrupted. The comfort knowing all employees are vaccinated will be an irresistible temptation. How does this then sit with the counter-veiling right of personal freedom?

It is likely that a number of employers will direct staff to have the vaccine. We anticipate a tranche of claims will be filed in the Fair Work Commission over the coming months from employees who are stood down or dismissed for failing to accept an employer direction to receive the COVID vaccination when it becomes available for them. By way of comparison, in the recent unfair dismissal case of Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083 (“Arnold”), the Commission briefly considered whether an employer (in this case, a childcare centre) could give a “lawful and reasonable” direction to its employees to receive a flu vaccination. The applicant refused to receive the flu vaccine, her argument principally being that her employer’s attempts to direct her to receive the flu vaccine was in violation of her human rights and tantamount to ‘assault’. Her employment was subsequently terminated.

Whilst the employee brought the matter to the Commission ‘out of time’ and was denied an extension to have her unfair dismissal heard, Deputy President Asbury did ponder the relevant principles and arguments relating to mandatory employer vaccination. She ruled that it is ‘at least arguable’ that Goodstart’s mandatory vaccination policy 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” and that the policy is prima facie “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“. DP Asbury also opined that 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”.

Whilst in the case of Arnold, the Commission was not required to determine whether the employer had issued a lawful and reasonable direction and whether the applicant’s failure to comply caused her to be dismissed unfairly, it is apparent from this matter what potential arguments, from both sides will likely be run when the COVID vaccine becomes available and employees in some industries/occupations are directed to receive one of the COVID vaccines.

Employers may have greater guidance once the Commission makes its decision in the case of Ms Maria Corazon Glover v Ozcare [2021] FWC 231. In this case, the applicant, an employee at an aged care facility, was directed to receive a flu vaccine by no later than 1 May 2020; her failure to comply would result in her being stood down from work until further notice. The employee refused on medical grounds (without supporting medical evidence) claiming that on receipt of a flu vaccine in the Philippines when she was 7 years old (some 57 years ago) she suffered a potentially life-threatening episode of anaphylaxis. The employer cited the direction of the Qld Chief Medical Officer, Dr Jeanette Young, pursuant to section 362B of the Public Health Act 2005 (Qld) stating employees cannot enter a residential aged care facility from 1 May 2020 if they do not have an influenza vaccination.

The employee asked for clarification on her accrued annual and long service leave balances to which she was advised would take her up to 4 October 2020. She subsequently lodged her unfair dismissal application on 9 October 2020. The employer did lodge a jurisdictional objection on the grounds that she was merely on leave without pay until further notice, or until she yielded to the requirement to be vaccinated, however, the Commission determined that the employee can no longer meet what the employer states is the inherent requirements of the position creating an impasse that has caused the employment to come to an end. The jurisdictional objection was dismissed, and the merits of the matter shall be heard in late January 2021. However, in her conclusions Commissioner Hunt noted that “there is much discussion around the legality of employers requiring employees to be vaccinated against influenza in light of the adverse reaction a vulnerable person might have if they have influenza and then contract COVID-19” which she noted that “medical evidence to-date suggests that such a combination is highly likely to increase the potential fatality of the individual”. Commissioner Hunt further noted 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”.

Finally, Commission Hunt observed that less typical occupations might be subject to a mandate to receive a COVID vaccine when it becomes available.

What can an Employer Do to Compel its Employees to be Vaccinated?

As there is very little decided case law to guide employers and legislators alike with respect to mandatory vaccination for the purposes of employment, or whether vaccination is indeed an ‘inherent requirement’ of a given occupation, employers will need to assess whether it can reasonably issue a direction for employees to receive the COVID vaccine. Arguments that employers might cite in support of a direction will likely include that:

1. it is a critical measure in creating a COVID safe work environment, similar to directions to use PPE and to properly sanitise;
2. they operate in high-risk categories for example providing services to the aged or ill;
3. they have a duty of care to other employees and clients/customers to prevent an employee from inadvertently spreading the virus;
4. it provides confidence amongst employees and customers/clients that the risk of infection is being actively mitigated due to employees having received the vaccine; and/or
5. they will lose essential custom and face severe negative consequences if customers/clients/members of the public avoid their business because of a failure to ensure employees are vaccinated.

No doubt, employees who do not wish to have the vaccine will rely on a number of grounds including: the vaccine is dangerous to them on medical grounds (provided they present supporting medical evidence); moral and/or religious reasons; they do not believe COVID is in fact real and the like.

Ultimately, the diligent employer will consult with employees who express concern about receiving the COVID vaccine to ascertain exactly what their concerns may be. Before instituting workplace policies all relevant medical advice should be ascertained to ensure the concerns of employees are taken seriously. In each circumstance, the direction must be assessed as whether it is lawful and reasonable. In this case, the prevailing issue will be whether mandating a COVID vaccine is reasonable. This question cannot be universally answered rather the opportunity for employers and employees to return to their pre-pandemic productivity in a safe and respectful working environment, and whether requiring employees to be vaccinated is reasonable in those circumstances will be the relevant issue.

Ultimately, whilst employers do need to carefully consider how employees with legitimate medical or health issues that prevent vaccination will be treated, employees who claim to be part of the ‘anti-vax’ movement or who cite human rights charters may be placing their continued employment at risk.

For those employers in industries where mandatory vaccination is not an imperative it may be far more useful for employers to engage positively with their employees to encourage them to have the vaccine. Forcing a vaccine on employees may result in harm to the workplace culture. Employers might seek to implement a policy where the uptake of the vaccine is promoted by highlighting reasons as to why the vaccine is positive for the community and the business. Promoting the benefits of the vaccine and making its uptake part of the expected corporate culture may be far more effective than merely mandating it. This might involve making vaccination voluntary but required where a client of the employer requests the services of vaccinated workers (e.g., for a secondment opportunity).

We are in the process of creating a COVID vaccination policy which can be customised to our clients’ specific requirements and recommend all clients consider the implementation of such a policy (sooner rather than later). If any further information in relation to any aspect of this alert is required, please do not hesitate to contact us. Otherwise, we are available and ready to assist should you require any other employment law advice or support.

This alert is not intended to constitute, and should not be treated as, legal advice.