April 2021 | Scott Freidman
The vaccines developed in response to the COVID-19 pandemic are showing signs of promise in addressing the health implications of the virus. However, they also raise issues of uncertainty for Australian workplaces focusing upon their health and safety obligations. In particular, two questions arise:
- in the absence of legislated directions requiring them, when can employers make COVID-19 vaccinations mandatory for their employees; and
- what options are available to an employer if an employee refuses to become vaccinated.
When can employers make COVID-19 vaccinations mandatory for their employees?
The general principle is that employers’ directions to employees concerning workplace health and safety requirements must be both lawful and reasonable. If an employee fails to follow such a direction and is terminated as a result, the employee may be entitled to legal relief if the direction is found to fall short of these requirements.
A direction to become vaccinated will be lawful unless legislation or other legal basis makes such a requirement unlawful. That leaves the question, when will such a direction also be reasonable?
The concept of ‘reasonableness’ is complex and will turn on the facts of each employment situation. On the one hand, vaccinations are an invasive procedure, but on the other hand, COVID-19 is a highly infectious virus which may present serious risks to the workplace and broader workplace community.
The central question is likely to be whether an employee is able to carry out their core duties safely if they are not vaccinated. In workplaces such as healthcare, aged care and child care facilities, it may be easier to establish the reasonableness of mandatory vaccination directions. In other workplaces this may be less clear with ‘reasonableness’ possibly turning on the level of interaction an employee has with colleagues and the workplace community in the course of carrying out their duties. For example, a direction to become vaccinated issued to a domestic flight attendant may be more likely to be found to be reasonable than to an employee working from home.
What options are available to an employer if an employee refuses to become vaccinated against COVID-19?
In the case of an employee’s refusal to be vaccinated for a valid health or medical reason, an employer may need to consider whether personal protective equipment or other methods may be used to adequately minimise the risk they present. The situation is less clear where the reasons for refusal are not medically established. Recent decisions of the Fair Work Commission dealing with employees’ refusals to undergo influenza vaccinations may throw some light on the issue.
Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning  FWC 6083.
- A child care worker, Nicole Arnold, refused on the basis of personal convictions to have the influenza vaccine as directed by her employer, Goodstart Early Learning;
- Arnold was terminated as a result and she subsequently filed an unfair dismissal application with the Fair Work Commission;
- Although Arnold’s application failed for being out of time, the Commission expressed the view that influenza vaccination was necessary for Arnold to perform her duties safely;
- The Commission also indicated that a medical reason for Arnold’s refusal may have produced an outcome in her favour, throwing doubt on the sufficiency of a refusal based on personal convictions alone.
Maria Corazon Glover v Ozcare  FWC 231
- Ms Glover was a residential aged care employee who provided in-home care. She was dismissed on the grounds she refused to comply with an inherent requirement of the role, receiving the influenza vaccine which had been mandated by her employer during the pandemic;
- Although the matter is yet to be determined at a full hearing, the Fair Work Commission noted:
“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”
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