Legal Insights

Further Update: New Commission decision - mandatory influenza vaccination may be lawful and reasonable in high-risk settings

By Ali Gallaher & Michael Wells

• 10 June 2021 • 4 min read
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In our recent insight, we discussed how a flurry of decisions of the Fair Work Commission (FWC) provide useful guidance on when mandatory vaccination may be an inherent requirement, a lawful and reasonable direction, or neither.

We also said law in this area was likely to rapidly develop. As expected, another recent decision of the FWC, Maria Corazon Glover v Ozcare [2021] FWC 2989, has bolstered the position for employers seeking to require vaccination against influenza in high-risk industries (such as aged care, disability services and in-home care).

In that case, mandatory influenza vaccination without any exemption was found to be lawful and reasonable, even though there was no statutory or other legal obligation that applied in the home-care sector that required vaccination.

We are hesitant to extrapolate this decision to apply to COVID-19 vaccination in similar settings, given the caution against requiring employees to be vaccinated expressed by the Fair Work Ombudsman and Safe Work Australia. However, as governments start to consider mandating vaccination in particular settings (such as health care or hotel quarantine), this position may evolve.

Remain cautious when relying on government directives to demonstrate an inherent requirement

Ozcare contended that vaccination against the flu was an inherent requirement of its client-facing workers’ roles, because of a Queensland public health direction that had prohibited persons entering residential aged care facilities if not vaccinated.

The Commission did not accept Ozcare’s argument – the employee was a home care assistant and did not work within the employer’s aged care facilities. The public health direction therefore did not apply to her role.

The Commission regarded Ozcare’s statement to the employee that it was their ‘legal responsibility’ to ensure all client-facing employees were vaccinated, as misleading and inaccurate.

Ozcare’s decision to introduce mandatory flu vaccination across all of its client-facing workforce was a decision it made of its own accord, not solely responsive to legal obligations. It was also a decision that went further than the requirements of the health directions (which provided for an exception where vaccination was not 'available to' an employee, i.e. where an employee’s own health reasons made it unsafe).

Mandatory vaccination without exception was found to be lawful and reasonable

Even though Ozcare’s vaccination policy was more onerous that the public health directions, it was found to be a lawful and reasonable direction to require client-facing employees to be vaccinated, without exception.

The employee’s refusal to comply with that direction (on the basis of an unsubstantiated claim that she had an anaphylactic reaction to a flu vaccine as a child) was a valid reason for dismissal, notwithstanding a number of other harshness factors in the employee’s favour (including length of service, prior exemplary record and the financial impact of the dismissal).

Although setting a higher bar than the public health directions, the mandatory vaccination policy was not unlawful.

In concluding that the policy was reasonable, Commissioner Hunt relied on the following factors:

  • the vulnerable and aged clients of Ozcare ought to expect that every precaution would be taken against the flu by employees entering their home;
  • community-care employees could become super-spreaders of influenza, as they visit many clients’ homes each day, and there is no formal infection control in the clients’ homes (as compared to residential aged care facilities);
  • the wearing of protective equipment alone is an insufficient safeguard to protect vulnerable community members;
  • Ozcare may face criticism or legal challenge if an unvaccinated worker caused a client to fall ill with the flu; and
  • Ozcare was entitled to implement its policy and rely on mandatory vaccination in any litigation and as an assurance to clients and their families as part of its commitment to safe and high-quality care.

Commissioner Hunt agreed that the reasonableness of the vaccination policy should be considered against the backdrop of Ozcare’s managerial prerogative. Ozcare was entitled to implement the vaccination policy, as a step it considered necessary to safeguard its employees and clients.

What this means for employers

Our view remains that employers should focus on comprehensive risk assessments in the context of their own operations, rather than case law coming out of the FWC, to determine whether mandating vaccination is appropriate.

However, employers in high-risk workplaces can feel more confident that, considering and consulting with staff mandatory vaccinations against influenza (or even COVID-19) is at least a sensible step towards ensuring the safety of their employees and clients/customers.

Do you operate in a high-risk environment, or otherwise want to explore your ability to mandate influenza or COVID-19 vaccinations?

Please contact our Employment, Safety & People Team.

By Ali Gallaher & Michael Wells

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