The answer is probably yes.
Amid some false starts at some point and potentially in the near future a vaccine will be rolled out in Australia. The Federal Government have been clear to announce that the vaccine will be voluntary, leaving some Employers with ambiguity as to whether they can force an employee to be vaccinated.
At the core of this question are several issues to consider:
- Reasonable and lawful directions
- Discrimination
- Workplace Health and Safety
Reasonable and lawful directions
The concept of Employers having the ability to require an employee to undertake a reasonable and lawful direction is standard amongst all workplaces. Reasonable and lawful directions which have been tested by the Fair Work Commission include:
- Requiring an employee to comply with work health and safety policies and processes
- Undertake tasks and duties as part of their position
- Adhering to a dress code
- Complying with rules set down by a host employer due to the location or customs of the industry
In answering the question of whether forcing an employee to get vaccinated is a reasonable and lawful direction we need to consider aspects of the position.
The first is the workplace environment. It is fairly arguable for an Employer who are in healthcare or child care to reasonably demand an employee be vaccinated for COVID-19 and other such diseases such as the flu shot. By not doing so, it could endanger the safe operation of the business.
In the unfair dismissal case of Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083, the Fair Work Commission provided some commentary on this position saying that it was “at least equally arguable ……..that requiring mandatory vaccination is reasonable in the context of it’s operation”. This case was filed out of time (and failed) and so this was really only commentary by the Fair Work Commission and involved flu shots but it gives Employers an idea of how the Fair Work Commission will view such directions.
The answer is they will likely deem it reasonable and lawful especially if the business itself could not genuinely operate without vaccinations. There may well be manufacturing and potentially service based businesses which fall outside of this category wherein the specific employee is not client facing however it would be arguable to say that their inaction on vaccination would bring the health and safety of other employees in jeopardy.
Workplace health and Safety
There is an obligation in workplace health and safety laws amongst all states in Australia to ensure the health and safety of themselves and others in the workplace.
Inaction to control the spread of infection or even legislative defiance such as “not wearing masks” would be classed as a breach of those health and safety obligations and would be:
- A breach of reasonable and lawful directions
- Breach of the employment contract
- Breach of legislation
- Potentially lead to financial penalties for both the employee and employer
It may well lead to valid reason for dismissal (or disciplinary action) of an employee in those circumstances after of course the rigor of a show cause process. There is one prime consideration to take into account however and that is discrimination.
Discrimination
The main argument put forward by objectors to the vaccinations are:
- political views; and/or
- religious views
Consideration of a refusal to vaccinate on one of these grounds could be argued to be sufficient.
However, there is an exception which will ordinarily arise if the discriminatory action is taken because of the inherent requirements of the particular position.
For example, it would be an inherent requirement of the position for a care worker to ensure they were vaccinated prior to undertaking their work of care for someone who was elderly or who had susceptibility to infection. The same would go for those working in hospitals, medical clinics and with children on a regular basis.
Another potential argument against being vaccinated is a legitimate medial reason. This will need to be considered by Employers much like any medical reason provided, evidence of this may (and should) be required.
A policy properly implemented should protect an Employer’s position.
This is a tough question and one that all Employers will need to traverse soon. Getting a policy in place will save a lot of heartache for those in Human Resources. NB Lawyers – Lawyers for Employers undertake and offer an obligation free consultation. Reach out via [email protected] or +61 (07) 3876 5111 to book an appointment.
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Written By
Director
NB Lawyers – Lawyers for Employers
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law at NB Lawyers – Lawyers for Employers who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.