Workplaces, Employees, Workers, Casuals, take notice
The Australian government’s nationwide rollout of the COVID-19 vaccination is now in full swing. Participation has been the topic of considerable discussion and debate, with some industries and workplaces in strong support of the scheme. Employers are now grappling with the question of whether or not they can implement mandatory COVID-19 vaccination policies in the workplace.
Despite employers being warned that implementing COVID-19 vaccination policies may be premature, particularly in industries outside healthcare and childcare, Brisbane-based Alliance Airlines is making COVID-19 vaccinations compulsory for all employees. The airline, which operates passenger flights for Qantas and Virgin Australia, employs around 700 people.
On May 30 2021, Alliance Airlines announced that all their employees would be vaccinated against COVID-19 and unless they have a genuine medical exemption, they will face “disciplinary action”. The rationale behind this policy is that Alliance Airlines believe they have a duty of care to provide a safe workplace for employees and passengers, with the rule extending to any contractors engaged with Alliance Airlines.
No other Australian airline has made COVID-19 vaccinations compulsory across their workforce but they are strongly encouraging their employees to do so. Nevertheless, Alliance Airlines is the first to make their COVID-19 vaccinations a non-negotiable policy.
However, not all are welcoming the “Get the jab or get terminated” rule. Alliance Airlines’ bold move has created some reservations and there is great debate about whether mandatory COVID-19 vaccination policies can be implemented by any employer. How will this affect my employment? What does the Fair Work Commission say about mandatory vaccination policies?
Given the novelty of COVID-19 and the vaccinations, the Fair Work Commission is yet to rule on whether mandatory vaccination policies can be implemented. Nevertheless, recent decisions before the Fair Work Commission have made rulings in regards to mandatory vaccination policies for influenza and it can be anticipated that a similar rationale will be applied to COVID-19 vaccines.
Employer’s Right to Mandate Vaccination Policies – Influenza
In Ms Nicole Maree Arnold v Goodstart Early Learning Limited TA Goodstart Early Learning, the Applicant was dismissed for refusing the influenza vaccination on philosophical grounds rather than our of medical necessity. Although proceedings were dismissed as a result of time limitations, Deputy President Asbury did comment on mandatory vaccinations in the context of childcare workers:
“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”.
This case demonstrates that in determining an employers’ power to mandate vaccinations, the employer must have regard to the type of work performed by the employee, and the basis in which the employee refuses the vaccination. 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.
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 or health exemptions. Now this begs the question, what is a genuine medical or health exemption? How much evidence do I need to provide?
Vaccine Refusal – Acceptable Medical Grounds
In Ms Bou-Jamie Barber v Goodstart Early Learning, the Applicant was terminated after objected to the influenza vaccine. In April 2020, the Respondent introduced an immunisation policy, requiring that all staff must receive the influenza vaccination unless they have a medical condition which makes it unsafe for them to do so.
The Applicant said that she has a sensitive immune system by reason of her auto immune and coeliac disease and consequently raised her objections to the vaccination. Ultimately, the Respondent determined that the medical certificate provided by the Applicant was not sufficient to support an objection the influenza vaccination, and the Applicant’s employment was terminated on 13 August 2020 for her failure to be vaccinated and meet the inherent requirements of her role.
Given the current climate, Deputy President Lake at the Fair work Commission stressed that this decision is directly related to the influenza vaccine alone and employers should be cautious before relying on it more broadly to enforce COVID-19 vaccinations for its employees. Nevertheless, Deputy President Lake has recognized that it is reasonable for a childcare provider to mandate flu vaccinations for those staff who deal with children on a regular basis and in such close proximity. The Deputy President also held that the flu vaccination was a lawful direction and fell within the scope of the Applicant’s employment.
In respect of whether there was a valid medical exemption in this case, Deputy President Lake held that the Applicant failed to provide any material that indicates there was a genuine risk in her being vaccinated. The Respondent’s policy was appropriately adapted and had any evidence been presented that there was a real medical exemption, it would have been considered and accepted.
In a 92-page decision, Deputy President Lake held that the Applicant’s termination was not harsh, unjust or unreasonable as the Applicant had chosen not to comply with a lawful and reasonable direction.
Lessons for Employers
There is no doubt that employer mandated vaccinations have been an area of debate during the COVID-19 pandemic. However, these decisions support employers within particular industries, such as childcare and aged care, who are wishing to have their employees vaccinated against influenza. It is still unclear as to whether the rationale in these decisions will be applied to the COVID-19 vaccinations but in the case of Ms Bou-Jamie Barber v Goodstart Early Learning, Deputy President Lake did remake that “…it is beyond the scope of this decision to consider whether the conclusions above extend even as far as the entirety of the Respondent’s business, as the role each employee performs in fulling the Respondent’s undertaking may differ.”
As such, it is certainly not the case that employer mandated vaccinations will be considered reasonable and lawful in any context. It will be interesting to see what cases arise following this decision and how the FWC determines the reasonableness and lawfulness of vaccination policies within various other industries not concerned with health-care or childcare.
It is relevant that safety regulators across the country have declined to support requiring employees or workers to receive COVID19 vaccinations outside of those covered by public health orders. The Federal Government in conjunction with the Fair Work Ombudsman and SafeWork Australia initially released guidelines advising that most employers cannot require their employees to be vaccinated against COVID-19.
Since these guidelines were released, it has now become mandatory for Health Workers in the State of Victoria to receive the Covid-19 vaccine in accordance with the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020. The Western Australian State Government also recently announced on 19 April 2021 that commencing from 10 May 2021 it will be mandatory for all employees who work in the hotel quarantine system to receive the COVID-19 vaccination.
Whilst the COVID-19 vaccine currently remains voluntary overall in many industries, front-line workers such as those working in hotel quarantine may soon be required to receive the vaccination not just in Western Australia but in other States if they choose to follow suit.
Whilst the influenza vaccine can be mandated in some industries to comply with health and safety obligations, this is not to be confused with mandating the COVID-19 vaccine which overall, remains voluntary.
Nevertheless, these decisions open the door to mandatory COVID-19 vaccinations in the health-care and childcare industry. If an employer’s policy for COVID-19 mandatory vaccination is lawful and reasonable in the context of its operations, employees will be required to comply and get the jab unless there are reasonable grounds to refuse the vaccination.
As demonstrated in the decisions above, employees will need to provide a valid medical exemption that demonstrates a genuine risk to an employees’ health if they are vaccinated. It is clear that simple generic medical exemptions will not be accepted.
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Authored by Gary Pinchen
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