Can employers mandate the COVID-19 vaccination?

This is a complex question that hasn’t been tested in court and will vary on a case by case basis. However, the Fair Work Commission has provided guidance on whether an employer can mandate influenza vaccinations for employees in a recent decision involving an employer operating in the aged care industry.[1] While the COVID-19 vaccination hasn’t been explored by the Fair Work Commission (yet), we do know that there are certain situations where an employer can mandate the influenza vaccination for its workers. These same principles can be relied upon to assist with determining whether employers can mandate the COVID-19 vaccination.

Lawful and reasonable directions

Employers are authorised to make lawful and reasonable directions. It is implied in all employment agreements that an employee must obey the lawful and reasonable directions of their employer. The implied obligation is essential to the functioning of the employment relationship and allows an employer to exercise control over their employees in certain situations. If the direction is valid and the employee fails to comply with the direction, the employer has a valid reason to dismiss the employee. Accordingly, it is important that employees comply with all reasonable directions.

What are the relevant factors that may make a direction reasonable?

The Fair Work Commission found in Maria Corazon Glover v Ozcare [2021] FWC 2989 (Gloverthat a direction to obtain the influenza vaccination was a lawful and reasonable direction. The Fair Work Commission considered several factors in its determination.

Immunisation Policy

An employer must have a clear policy identifying what is required of its employees. In Glover, the employer prepared an immunisation policy that identified the relevant process and obligations of staff. The employer also clearly identified the purpose and objective of the policy. Most employment agreements already impose an obligation on employees to comply with policies as they are introduced and amended from time to time.

The industry of the employer

Certain industries may mean that the risk and impacts of COVID-19 are heightened. In Glover, the employer was operating in the aged care industry requiring staff to care for elderly clients who are at higher risk of complications relating to influenza. Employers in the aged care industry are also subject to a very strict regulatory regime that may prescribe vaccinations and practices for employees in the entire industry. The Fair Work Commission found in Glover that the employer’s ‘8,000 clients aged 75 or older ought to expect that the paid worker attending their home will take every precaution not to share influenza which alone could cause them to become extremely unwell or even die’. The Fair Work Commission made it very clear that the ageing client base meant that if the employer did not mandate the influenza vaccination, it may be in dereliction of its duty of care to its vulnerable clients. Accordingly, an employer must consider whether the workplace includes contact with vulnerable people. Vulnerable people will generally include children, elderly clients and people with disability.

Government regulations

Government recommendations and directions will always be relevant in these types of matters. More recently, the NSW Government has made regulations to reduce the transmission of COVID-19. The NSW Government has also indicated that it will make it compulsory for childcare workers and disability support workers who live or work in the Local Government Areas of concerns to have their first vaccination by 30 August 2021. It is likely that the Fair Work Commission will find that an employer operating in the childcare and disability services industry is authorised to direct its workers to have their first vaccination dose in the context of the directive. It is also likely that there will be further government directives that will result in changes to this area of law.

Work health and safety obligations

All employers have a primary duty of care to provide a safe workplace to their employees. There is an argument that an immunisation policy is an extension of an employer’s duty of care to provide a safe workplace.

Where to from here?

Ultimately, an employer is authorised to make lawful and reasonable directions. Whether a direction is reasonable and lawful will depend on a very unique set of circumstances and can change from employer to employer. If you are an employer or employee who requires advice on the lawfulness of a COVID-19 vaccination policy, call us now on 02 9199 8597 to speak to one of our employment law experts.


 [1] Maria Corazon Glover v Ozcare [2021] FWC 2989.

 

 

 

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