With the COVID-19 vaccine rollout underway, it’s the question everyone is asking – Can an employer require its employees to be vaccinated?

Two recent decision handed down by the Fair Work Commission have upheld that employers were justified in terminating employees who failed to comply with the lawful and reasonable direction to be vaccinated in accordance with their workplace policies.

Whilst both decisions related to the flu vaccination, they do shed light on the complex question of when employers can enforce mandatory vaccinations.

The Decisions

In Barber v Goodstart Early Learning [2021] FWC 2156, Goodstart Early Learning, who operated a childcare centre, implemented an immunisation policy which required all its staff to receive the flu vaccination, unless they were unable to do so based on medical grounds. Ms Barber objected to the vaccination and obtained a medical certificate which stated that she had allegedly suffered from an adverse reaction to the flu vaccination in the past. Subsequently, Goodstart Early Learning terminated Ms Barber’s employment on the basis that she was unable to meet the inherent requirements of her role.

The Commission found the failure to obtain the flu vaccination did not inhibit Ms Barber from performing the inherent requirements from her role. However, the Commission held that Goodstart Early Learning did have a valid reason to terminate Ms Barber as she had failed to comply with the lawful and reasonable direction to be vaccinated in accordance with Goodstart Early Learning’s policy.

Similarly, in Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818, Sapphire Coast Community Aged Care Ltd, who operated a nursing home, terminated Ms Kimber on the basis that her refusal to comply with the NSW public health order, which provided that no person may enter an aged care facility without an up-to-date influenza objection, meant that she was unable to fulfil the inherent requirements of her role.

The Commission found that Ms Kimber was indeed unable to perform the inherent requirements of her job if she was not lawfully permitted to enter or remain in Sapphire Coast Community Aged Care Ltd’s business premises.

When will mandatory vaccinations be lawful and reasonable?

Whilst the question of reasonableness will likely differ for each employer, both cases highlighted what factors will be of importance in determining if an employer’s policy is reasonable, such as:

  1. The employer’s health and safety obligations under the relevant legislative framework;
  2. The environment in which the employer operates;
  3. The Government’s recommendations and advice surrounding vaccination;
  4. The relative ineffectiveness of alternative control measures (such as personal protective equipment, social distancing and hygiene);
  5. Whether the policy was appropriately adapted (such as to allow for medical exemptions);
  6. Whether the employer engaged in union consultation and support for the policy; and
  7. Whether the policy was within the scope of the employee’s contract.


Takeaways

The above cases are not indicative of a broad approval of mandatory vaccinations. However, they do provide guidance on when mandatory vaccination policies can be lawful and reasonable, particularly in circumstances where the employer operates in environments which present distinct risks, such as caring for vulnerable people. The onus is ultimately placed on the employer to justify the need and practicality of a mandatory vaccination policy.