The Fair Work Ombudsman and Safe Work Australia have produced guidance for Australian employers specifically addressing whether it is lawful to compulsorily require an employee to receive the COVID-19 vaccination, outside of the requirements of relevant Chief Health Officer orders (for example as apply to hotel quarantine workers).

The guidance from these bodies makes it clear, at this time, that employers cannot assume they can require employees to be vaccinated, and that a vaccination is unlikely to be considered as a reasonably practicable requirement under safety legislation. The guidance notes that each employee’s position may need to be considered on a case by case basis, and recommends that employers seek legal advice.

We expect that this topic may be the subject of further regulatory guidance and case law, given the strong views involved and the recent cases dealing with influenza vaccinations, which we have explained below.

How does the law apply to vaccinations?

It is clear that a relevant issue will be whether a requirement for an employee to be vaccinated, be it against COVID-19 or influenza or some other illness, will involve consideration of the inherent requirements of that employee’s role.

The inherent requirements of a role are its essential parts. For example, an inherent requirement of the role of truck driver is the ability to safely operate a truck. If an employee cannot perform these inherent requirements, whether for a medical or some other reason, they can likely be dismissed, provided there are no reasonable adjustments the employer could make that would enable a worker suffering from a disability to do so.

Employees have a duty to comply with directions of their employer which are lawful and reasonable – a failure to do so without a good excuse can be misconduct and similarly warrant dismissal.

Is being vaccinated an inherent requirement of at least some roles, or is a requirement to get vaccinated a lawful and reasonable direction? This distinction will affect the way a mandatory vaccination policy should be framed and the ability of employers to terminate employment in the event an employee cannot or refuses to be vaccinated.

There is no one-size-fits-all approach to this issue. What is lawful will depend entirely on the circumstances, including the work-related risk being addressed by vaccination (to be determined through a comprehensive risk assessment), the nature of the workplace, the employees and the work they do.

This means that existing measures to eliminate the risk of transmission of infectious illnesses, such as distancing, ensuring employees don’t attend work while sick, mask wearing, and/or cleaning regimes will need to be implemented as part of what is reasonably practicable to eliminate or reduce the risk of infection. It will also be important that you continue to monitor implementation and ensure your employees and others are complying with your safety measures, in accordance with your work health and safety duties.

You will need to consult with employees on changes to these measures, and changes to your approach to vaccination, pursuant to your WHS/OHS obligations.

If you are considering requiring your employees to be vaccinated, please feel free to contact our team to discuss how these issues may unfold in the context of your workplace.

Vaccination is unlikely to be an inherent requirement, but this will depend on the nature of the role and relevant health orders in place

It is long accepted that, where an employee cannot perform the inherent requirements of their role, with or without reasonable adjustments, an employer will have a valid reason for dismissal related to their capacity.

The phrase is bandied about often – but a recent decision of Deputy President Lake in Barber v Goodstart Early Learning [2021] FWC 2156 dealt directly with how the concept of ‘inherent requirements’ may be applied to mandatory vaccinations.

That case involved an educator employed in an early learning centre, who refused to be vaccinated against influenza when her employer introduced a policy in April 2020, citing a sensitive immune system and an adverse reaction some 11 years prior as the reason for her refusal. Her employment was ultimately terminated on the basis that she could not perform the inherent requirements of her role.

In finding that vaccination was not an inherent requirement, the Deputy President made some compelling observations that serve as a good reminder for employers:

• The fact that vaccination may be a way to reduce risk in the workplace, consistent with health and safety obligations, does not make vaccination itself essential to a role.
• Not every instruction (whether given under a policy or otherwise) of an employer will reflect or create an inherent requirement of a role, but so long as the direction is reasonable and lawful, employees must comply.
• Unless being vaccinated impacts an employee’s ability to perform the tasks that make up their role, it is unlikely to be an inherent requirement.
• The ability to offer blanket exemptions to a requirement (in this case, on medical grounds) suggests that the requirement is not inherent.

The above can be contrasted with another recent decision – that of Commissioner McKenna in Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818. That case involved a receptionist working in a high-care aged care residential facility whose employer similarly instituted a mandatory vaccination policy in the early months of the COVID-19 pandemic.

The dismissal was found to be fair, because vaccination against the flu was an inherent requirement of her role. Why the different conclusion? The NSW COVID-19 directions in force at that time prohibited persons entering a residential aged care facility without an up-to-date flu shot. This means the employee could not lawfully enter her place of work unless vaccinated and therefore could not perform her role.

The circumstances in Kimber are unique and set a very high bar. Absent a law or governmental direction which prevents an employee from doing their job without being vaccinated, we suggest employers exercise great caution in describing a requirement to be vaccinated as inherent, or contemplating dismissal on this basis in the event an employee cannot or refuses to be vaccinated.

A request to be vaccinated may be lawful and reasonable

In Barber, Deputy President Lake found that, although vaccination was not an inherent requirement, it was lawful and reasonable for the employer to require employees to be vaccinated against the flu. Accordingly, the applicant’s failure to comply without reasonable excuse was misconduct and a valid reason for dismissal.

Whether mandatory vaccination will be lawful and reasonable is a question of fact, the answer to which will depend entirely on the particular circumstances. Some relevant factors to consider include:

• the WHS/OHS obligations that apply to employers and employees
• any statutory obligations or government recommendations that apply to the employer’s industry – for example, in the aged or health care, childcare or disability services industries
• the nature of the work and the degree of risk
• the severity of the illness and effectiveness of the vaccine in question
• any contractual provisions which require compliance with policies
• how well adapted the policy is – does it allow for case by case exemptions on medical grounds to be fairly assessed after receiving supporting evidence? Did the employer consult with employees before implementing the policy? Does the employer cover the cost of vaccination?

In Barber, the decision did not turn on whether there were other more or less effective ways to protect employees against the relevant illness (for example wearing face masks or social distancing to protect against the flu or COVID-19). The question is whether the employer’s choice to require vaccination is reasonable. If the direction is reasonable and not otherwise unlawful, a failure to comply without a fair excuse will be misconduct.

This reasoning appears to be at odds with the guidance from Safe Work Australia, so we recommend that you monitor guidance from safety regulators in this area. It is open to take a different interpretation of the requirements to comply with safety duties, noting that the obligation owed in WHS/OHS legislation is to eliminate risks to health and safety so far as is reasonably practicable, and only when this is not possible to reduce them. Much is likely to turn on the effect of vaccination and what this means for the risk of illness for both the employees and others in a workplace. For example, at this time, there is not a great deal of knowledge about the effect of various COVID-19 vaccinations on transmissibility. The legal position may change as more is known and new and different vaccinations become available.

Watch this space…

Whilst guidance from the Fair Work Commission is helpful, it is important that employers undertake their own thorough risk assessments and properly consult before mandating vaccination, rather than relying on case law in the same or a similar industry. Similarly, the lawfulness of a vaccination direction will depend on the relevant illness and the known benefits of the vaccination.