Employers navigating health and safety obligations during the Covid climate often ask the question – “What should I do if an employee is displaying possible Covid symptoms?” Or, “Can I compel my employees to get the flu shot and the Covid vaccine?“.
We address these issues below to give employers some clarity on the limits on what they can and cannot do in this tricky area of vaccinations.
Can you compel employees to get the flu shot and/or the Covid vaccine?
In general, employers cannot compel employees to get the flu shot or the Covid vaccine. The Fair Work Ombudsman has warned that “the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus.”
There will however be some limited circumstances where it is possible to compel employees to have the flu shot or the Covid vaccine.
For example:
The Queensland Government has issued a health directive to the effect that from 30 May 2021, only persons (including workers) who have had the 2021 flu shot may enter aged care residences (unless a medical exemption applies). It follows that employees working in aged care residencies can be compelled to have the flu shot.
As at 6 May 2021, the Queensland Government has issued a health directive to the effect that only Covid vaccinated medical staff can work with diagnosed Covid cases.
Where these health directives do not apply, employers need to carefully consider numerous factors to decide whether or not implementing a policy requiring employees to be vaccinated is reasonable.
Factors such as the industry in which the employer operates, the specific roles the employer wishes to mandate vaccinations for and the risks to the employee weighed against the risks to customers of the employer (in particular, do those customers have any special vulnerability to Covid or the flu) and other workers should be considered.
It will not be a “one rule applies for all” situation.
Special vulnerability of customers and workers has been an important factor considered by the Fair Work Commission in assessing the reasonableness of employer policies compelling employees to be vaccinated.
For example:
In the decision of Barber v Goodstart Early Learning Limited T/A Goodstart Early Learning [2021] FWC 2156, Goodstart implemented a mandatory flu vaccination policy. It contained an an exemption on medical grounds.
Ms Barber, an employee, was dismissed on the grounds that she refused to have the flu vaccination (she alleged medical conditions and a prior adverse reaction, none of which were supported by medical evidence). Goodstart alleged there was a valid reason for termination as the employee had failed to follow a lawful and reasonable direction and could not meet the inherent requirements of her role by failing to be vaccinated against the flu.
The Commission found there was a valid reason for termination of employment because the employee failed to comply with a reasonable and lawful direction and held:
“At the heart of Goodstart’s purpose is rigorous care and education for a vulnerable and still developing group that lack the capacity for themselves – children…The childcare industry faces unique organisational challenges which make other controls less effective, or impractical. I am satisfied that it is reasonable for a childcare provider to mandate flu vaccination for those staff who deal with children on such a regular basis, and in such close proximity.”
Accordingly, the specific role of the employee (as an educator with direct contact with children), the special vulnerabilities of the children and the absence of other measures to adequately protect the children were persuasive factors in determining the reasonableness of the policy. Notably, the Commission did not accept the lack of vaccination meant she could not perform the inherent requirements of the role.
More recently, in the decision of Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818, the Fair Work Commission again held dismissal of an employee was for a valid reason due to the employee failing to comply with NSW public health orders requiring up-to-date influenza vaccination for anyone entering residential aged care facilities.
The employee worked in a high-care nursing home and was refused entry to the premises by the employer due to the public health order. No medical evidence was provided to support any exemption applied, only a letter from a practitioner in Chinese medicine indicating she would prefer not to have the vaccine due to an alleged previous allergic reaction.
In this case, the employer alleged the employee could not perform the inherent requirements of her role as she was prevented from attending the residency unvaccinated (and without a medical exemption). The Commission accepted that the termination was for a valid reason and that the reason was that she could not perform the inherent requirements of her role if she could not be permitted onto the premises without an up-to-date vaccination.
In the decision of Maria Corazon Glover v Ozcare [2021] FWC 231, Ms Glover was a nurse employed by Ozcare who refused the flu vaccination despite OzCare’s policy mandating flu vaccinations. The refusal was on the basis of an alleged childhood reaction to the flu vaccination and a fear of the consequences of getting the vaccination.
Ozcare ceased rostering Ms Glover at which time Ms Glover took her accrued leave and, some months later, lodged an application for unfair dismissal. While this decision related to whether or not there had been a “dismissal”, the Commissioner made the following comments:
“I consider it suitable to note that there is much discussion around the legality of employers requiring employees to be vaccinated against influenza in light of the adverse reaction a vulnerable person might have if they have influenza and then contract COVID-19. It is, of course, a very concerning proposition, and medical evidence to-date suggests that such a combination is highly likely to increase the potential fatality of the individual.
In my view, each circumstance of the person’s role is important to consider, and the workplace in which they work in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction. Refusal of such may result in termination of employment, regardless of the employee’s reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector.”
The OzCare matter is presently before the Fair Work Commission to decide the ultimate question of whether or not, in those particular circumstances, OzCare’s policy is reasonable and the employee’s refusal was a valid reason to terminate. We’ll write more on this when the decision is released however the Barber and Kimber decisions provide some insight as to the likely outcome.
While these cases relate to the flu vaccination, these same considerations will likely also apply to the COVID vaccine. Reasonableness will always determine the enforceability of a direction to compel employees to have the COVID vaccination.
What can you do to reduce the risk of employees attending work with temperatures or possible Covid symptoms?
Regardless of the industry you operate in, there are some options to reduce (although not eliminate) the risk of an employee attending work with temperatures or possible COVID symptoms.
Some options include:
- Ensuring all employment contracts include obligations on the employee to:
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- a. Submit to medical checks at the employer’s request or direction;
- b. Comply with workplace health and safety policies and procedures and generally the workplace health and safety legislation;
- c. Comply with reasonable and lawful directions of the employer which are directed at protecting employee health and safety.
- Implement (and educate employees on) a workplace policy requiring the above to the extent employment contracts do not uniformly include such clauses;
- Implement (and, again, educate employees on) a workplace policy requiring employees to remain at home if displaying or suffering from any flu or COVID-related symptoms to ensure the health and safety of the employee and all workers in the workplace.
Where there are clients who are at a special vulnerability to the flu or COVID, it may also be reasonable to mandate that employees undertake mandatory temperature testing and to stay home if there is a high temperature reading until the temperature readings normalise. Such a policy (and dismissal in reliance on the policy) was held to be reasonable in the matter of Fesshatsyen v Mambourin Enterprises Ltd (2021) FWC 1244 but it is important to note that the industry in which the employee worked was disability support services and this was an important factor.
Vaccinations in the Workplace Summary
The matters presently decided by the Fair Work Commission are limited to the aged care and child care industries and were decided having regard to the specific roles the employees performed. Outside of these industries, employers need to tread carefully before proceeding to implement policies concerning mandatory vaccinations or terminating employees for not being vaccinated or exposing workers to possible flu or Covid symptoms.
Always seek out advice when in doubt to reduce your risk of unfair dismissal applications by a dismissed employee.
