It is becoming increasingly apparent that employees without an established medical exemption who refuse a COVID-19 related direction given by their employer risk termination of their employment. This direction can be viewed as both lawful and reasonable in the circumstances. However, this conclusion differs when an employee can establish a valid medical contraindication as the basis of their refusal.
For example, an employer will face difficulty directing an employee to wear a face mask if that employee possesses a medical exemption. This is evident in the Victorian Government’s guidelines of ‘exemptions for not wearing a face mask’,[1] which states that a mask does not have to be worn by individuals who ‘have a physical or mental health illness or condition, or disability, which makes wearing a face covering unsuitable, including persons with obstructed breathing, a serous skin condition of the face, an intellectual disability, a mental health condition or person who have experienced trauma’.
In such instances, employees possessing a medical exemption are encouraged (but not required) to stay at least 1.5 metres apart from others and practice regular hand hygiene and testing requirements. Additionally, the employee is not required to have a medical certificate stating a lawful reason not to wear the mask.
An employer who insists or threatens their employee with acts such as termination of employment in such circumstances is at risk of breaching section 351 of the Fair Work Act 2009 (Cth). Section 351 prevents an employer from taking adverse action against an employee’s protected attributes. An employee’s medical exemption will fall under the protected attribute of ‘disability’ under the Act. Additionally, in a similar manner of argument, an employer would also face liability for discrimination under the Equal Opportunity Act 2010 (Vic).
Notwithstanding the above, an employer is entitled to discriminate on the basis of the employee’s medical exemption if it can be established that making adjustments for such employees is unreasonable. [2] However, this will be difficult for the employer to allege, as the Victorian guidelines only recommend that employees maintain at least 1.5 metres apart; this is not likely to be seen as onerous. Additionally, an employer may discriminate against an employee on the basis of disability if it is reasonably necessary to protect the health and safety of any person or the public generally. [3] Once again, unless the workplace setting is extremely delicate to bacterial presence, such as an operating theatre in a hospital, it will be difficult for an employer to argue that public health is at risk as a result of an employee not wearing a mask, especially in the context of high double-dose vaccination rates and reducing COVID-19 numbers.
Employees in these circumstances should seek legal advice about their workplace rights and guidance on how to resolve the issue at hand.
[1] https://www.coronavirus.vic.gov.au/face-masks-when-wear-face-mask’
[2] Equal Opportunity Act 2010 (Vic) s 17
[3] Ibid s 86(a).