As a result of the COVID-19 pandemic, many workplaces have made plans to alter schedules and company policies to reflect health and safety procedures and government guidance. Some companies may already have policies that include mandatory vaccinations such as flu shots, subject to medical exemptions and with the COVID-19 vaccine roll out underway, more companies may look to make vaccination a mandatory condition of employment. Airlines such as Qantas are already indicating their customers will be required to be vaccinated to use their services. It would follow that employees of such businesses would be required to be vaccinated as well.
The legal framework that exists under current legislation indicates there will likely be different approaches to the issue of enforced vaccinations between industries. For example, if an employee works in the medical and aged care sector (including laboratories), the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020, assented to on 24 March 2020, requires all vaccines to become compulsory for all healthcare workers including, but not limited to, doctors, nurses, and ambulance workers. This Act also requires all staff working in hospitals, such as cleaners and other contractors, to comply with the legislation to minimise the spread of preventable infectious diseases from patients to healthcare staff. Employees are required to be vaccinated according to a three-tiered schedule, as per the Department of Health and Human Services, depending on whether you have regular contact with blood and other bodily fluid.
Employers must produce or demonstrate their employees’ immunity to the Department of Health. As such, any action taken against an employee if they have not complied with this direction from the Department of Health would likely not amount to discrimination against the employee’s political/religious belief or activities under relevant discrimination legislation.
In the latest case of Bou Jamie Barber v Goodstart Early Learning, [2021] FWC 2156, Deputy President Lake determined a refusal of a direction to be vaccinated is a valid reason to terminate an employee under the Fair Work Act 2009 (Cth). This is because such a direction was held to be lawful and reasonable.
In this case, the Respondent issued a directive for all staff to receive the influenza vaccine by June 2020. The Applicant had refused to do so on personal and medical grounds, as she had previously suffered vaccine sensitivities and autoimmune disorders. The Respondent terminated the employment of the Applicant as the Respondent believed the medical certificates the Applicant provided were insufficient.
Deputy President Lake accepted that the direction to vaccinate was lawful and reasonable as the Respondent had a duty to protect the health of staff and children of the facility. Further, Deputy President Lake accepted the following reasons provided by the Respondent:
- Flu symptoms are severe in children and children are susceptible to a higher morbidity and mortality rate;
- Many children are unable to be vaccinated due to age;
- Alternate ways of managing the risk of infections such as social distancing are not available to childcare workers; and
- Flu vaccinations have been proven to reduce the risk of infection among children and staff.
The state and federal governments have released recommendations for particular workers in the private sector to keep to schedule with their vaccinations. This includes but is not limited to, carers of older people and those with disabilities, laboratory workers, and emergency or essential services workers.
In light of these recommendations, some private companies have already updated their vaccination schedules and requirements. The Victorian Charter of Human Rights and Responsibilities only applies to government sector work, and thus private companies can set rules and schedules as part of their Workplace Occupational Health and Safety Plans because they hold a common law and statutory duty of care over customers and their staff (see e.g. Black v Warwick Shire Council [2009] QSC 123). If the Victorian Government mandates that individuals must vaccinate (Public Health and Wellbeing Act (Vic)), private companies may update their schedules to reflect the government mandate. In practice, as long as a vaccination direction is reasonable and proportionate, employees could theoretically be dismissed from their employment for refusing to have a COVID-19 vaccination.
If you have been dismissed from your employment and believe the decision was disproportionate, unreasonable, or motivated by an unlawful reason, you should contact employment law specialists immediately.