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When is it lawful to mandate a vaccination?

Charles Power - Workplace Bulletin

With COVID-19 vaccinations top of the agenda around Australia, especially in Victoria at the moment, it’s timely to consider employers’ rights to make vaccinations mandatory among its employees.

Unlike the COVID-19 vaccine, the influenza vaccine is nothing new, and many businesses have long encouraged employees to receive the vaccine. In some industries, it is also mandatory.

Dismissal for refusal to be vaccinated

In Glover v Ozcare (2021), an assistant employed by an aged-care business to deliver home-care services was dismissed for refusing to have the influenza vaccination in accordance with the employer’s policy.

The employee, Ms Glover, believed she would suffer an anaphylactic reaction to the influenza vaccine based on what she was informed happened to her as a child.

The employer was subject to a Queensland State Government Direction issued on 21 March 2020 that made it mandatory for workers and visitors to aged-care facilities to have an up-to-date influenza vaccination, if it was available to them. The ‘availability’ exception exempted employees with valid medical objections.

The employer introduced a policy in May 2020 that went further than the Direction. The policy mandated influenza vaccinations for all client-facing employees, regardless of whether they had valid medical grounds for not receiving it. This policy applied to home-care employees, even though this cohort of employees was not covered by the Direction.

The employer justified the policy on the basis that a substantial number of home-care clients had cancelled their services.

The case for unfair dismissal

Ms Glover lodged an unfair dismissal application in the Fair Work Commission (FWC).

The FWC determined there was valid reason for the dismissal because the employee had not met the mandatory requirement of employees being vaccinated against influenza. Even though the requirement imposed by the policy did not allow for any exemptions, it was a lawful and reasonable requirement.

The requirement was lawful because home-care clients were vulnerable and ought to expect employees attending their home will take every precaution not to spread influenza, which alone could cause them to become extremely unwell or even die. Failure to vaccinate a worker against influenza might expose the employer to legal proceedings for relevant breaches of duty of care to its vulnerable patient. The wearing of personal protective equipment alone, without vaccination, was an insufficient safeguard.

The FWC accepted the employer was entitled to make decisions that it considered necessary to safeguard its clients and employees as far as practicable.

Moreover, the FWC ruled it was reasonable requirement in all the circumstances because the employee was given 6 months to reconsider and allowed to draw down on paid personal leave before annual leave and long service leave.

The FWC was critical of the employer for trying to justify the policy on the Direction, which did not apply to community care and did not apply to a worker who had anaphylaxis.

The employee’s doctor recommended the employee not be rostered to work for 4 months of the year during winter and September. The employer claimed it would not be reasonable or practicable to accommodate such an annual request for a permanent part-time employee. The FWC observed that, given the employer’s size, it would not have been unreasonable to accommodate such a request if it had been made. However, it wasn’t made by the employee despite her doctor’s recommendation.

The FWC rejected the employer’s assertion of a further grounds for dismissal being the employee’s failure to provide medical evidence to support her claim of her medical grounds for refusing the vaccination. The FWC observed the employee had been left for many months to her own devices while she was on paid personal leave, then annual leave and long service leave, without pressing her to provide medical evidence. The employer could have made appointments with an immunologist and directed the employee to attend the appointments at the employer’s cost.

The final word

The FWC concluded the employer’s decision to mandate influenza vaccinations for all its client-facing employees, without allowing any exemption, was lawful and reasonable. It provided a valid reason for the dismissal having regard to the employee’s capacity and the employer’s operational requirements.

The FWC acknowledged the employee’s right to decline the vaccination based on her genuinely held belief that she may suffer an anaphylactic reaction to the vaccination. However, the employer’s responsibilities to its clients overrode the employee’s right to decline the vaccination and remain employed.

The FWC took into account that the employee was 63, of little means and had more than 10 years’ unblemished service. Despite this, the FWC ruled the dismissal was not unfair.

 

 

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