On 25 January 2021, the Pfizer COVID 19 vaccination was approved for roll-out in Australia. This raises an important question – can employers require workers to be vaccinated against COVID 19? There is no hard and fast answer yet, but we can look to recent cases involving flu vaccinations for guidance.
A term requiring employees to comply with the lawful and reasonable directions of their employer is implied into every contract of employment. This is a key feature of the employer/employee relationship and distinguishes an employee from an independent contractor.
An employer’s directive made by an employer to its employees to be vaccinated against COVID 19 will be lawful if it concerns the employee’s duties and involves no illegality. In most instances, a vaccination policy will meet this test. This leaves the question of whether or not it is reasonable for an employer to ask an employee to have such a physically invasive procedure that also involves the injection of a substance into the body? The answer will depend on whether a COVID 19 vaccination is necessary for employees to perform their core duties safely.
Case studies
In the following cases former employees brought unfair dismissal cases after their employment was terminated for non-compliance with the flu vaccination policies of their employers.
Nicole Marie Arnold was a child-care worker. She had no health or medical grounds for refusing her employer’s directive to have a flu vaccination, rather she had moral and/or philosophical objections. Her unfair dismissal application was dismissed as being out of time, but Deputy President Asbury of the Fair Work Commission observations suggested the employer’s vaccination policy was reasonable because of the nature of the employee’s work, that is, the care of children who were too young to be vaccinated or unable to be vaccinated. Arguably, the employer’s policy was necessary to ensure that it met its’ duty of care with respect to those children.1
Maria Corazon Glover was an aged care worker who refused an employer’s directive to have a flu vaccination on health and medical grounds because she had suffered anaphylaxis as a child as a result of a vaccine 57 years previously. A decision in this unfair dismissal case is still pending but key to deciding whether or not the employer’s vaccination policy was ‘reasonable’ will be the objective medical evidence adduced about Ms Glover’s health concerns regarding the flu vaccination and whether any risks could be mitigated if, for example, she wore PPE.
Compulsory COVID 19 vaccinations
In most situations, employers find a mandatory flu vaccination policy almost impossible to defend. Outside of the care of vulnerable people (the ill, the elderly or children), it is difficult for an employer to justify that such a policy is necessary for the employee to perform their duties safely. However, given the deleterious effect of the highly infectious COVID 19 on the community, it is likely that large groups or even most employees will be required by their employers to have the COVID 19 vaccination. Employers will cite their work health and safety obligations to their employees, customers and suppliers and wider community as the rationale for a vaccination policy while employees who are resisting vaccination will argue that the adoption of alternative risk mitigation strategies make such vaccination policies unreasonable and potentially a violation of human rights principles.
As with all cases involving workplace policies requiring such physically invasive procedures (another example being drug testing) a policy mandating COVID 19 vaccinations for all employees will be determined on a case-by-case basis.
If you are an employer needing advice about whether you should implement a COVID 19 vaccination policy or you are an employee concerned about whether such a workplace policy is reasonable in your circumstances, we can help. Call us now on 1300 654 590 for a no-obligation chat.
[1] It should be noted that the employer’s vaccination policy also allowed for the needs of employees who had reasonable grounds to refuse to be vaccinated on the basis of their health and/or medical conditions.
