The question of whether or not employers can mandate that their employees be vaccinated, has been the subject of a number of recent decisions by the Fair Work Commission, and is of increasing relevance as we move through the COVID-19 pandemic.
Jennifer Kimber v Sapphire Coast Community Aged Care Ltd
Ms Kimber was employed as a receptionist in an aged care facility, and had received vaccinations against influenza (flu shots) in both 2015 and 2016. Following the 2016 flu shot, Ms Kimber experienced a reaction including a skin rash and burning sensation, and some additional unspecified impact on her internal organs. This reaction continued for 10 months, and as a result Ms Kimber decided not to receive any further flu shots.
This decision did not impact her employment until 2020, when on 24 March 2020, in response to the COVID-19 pandemic, the NSW Government made a public health order prohibiting anyone to enter or remain on aged care facility’s premises where they:
• had arrived from outside Australia within the last 14 days; or
• had contact with a confirmed COVID-19 case within the last 14 days; or
• had a temperature higher than 37.5 degrees or symptoms of an acute respiratory illness; or
• did not have an up to date flu shot where available to the person.
In accordance with the public health order, Ms Kimber’s employer in effect was required to mandate vaccination against influenza for their employees with the exception of employees who had suffered an anaphylaxis in response to a previous flu shot.
Ms Kimber declined to have the flu shot in 2020, was stood down and ultimately dismissed. The Fair Work Commission found that this dismissal was not harsh, unjust or unreasonable. Key to this decision was the public health order, and Ms Kimber’s failure to provide contemporaneous medical evidence as to her 2016 reaction.
Bou-Jamie Barber v Goodstart Early Learning
Ms Barber was employed as Lead Educator at a child care facility. On 17 April 2020, her employer implemented a mandatory vaccination policy requiring all staff to receive a flu shot. Ms Barber wrote to her employer raising an objection to receiving the flu shot. Some further correspondence between the parties followed, and Ms Barber’s employer noted that staff could object to the vaccination program on medical grounds and that to do so they should provide medical evidence.
On 29 May 2020, Ms Barber provided a medical certificate to her employer stating that:
‘…Ms Barber has a sensitive immune system and had a history of chronic auto immune / Coeliac treated in the past and still struggling with symptoms. She reports reacting quite badly to Flu Vaccination.’
Ms Barber’s employer sought further detail of Ms Barber’s previous adverse reaction to flu shots. Ms Barber was ultimately unable to provide this, and her employer ended her employment on the basis of her failing to meet the inherent requirements of her role.
Ms Barber made an unfair dismissal application to the Fair Work Commission. The Commission found that the employer’s direction for all staff to receive a flu shot was reasonable. In seeking to frame this failure as Ms Barber not meeting the inherent requirements of her position, the Commission stated that her employer added an unnecessary layer of complexity. Ms Barber’s failure to comply could have been construed as misconduct.
Key to this decision was Ms Barber’s failure to provide contemporaneous medical evidence as to her previous reactions.
Maria Corazon Glover v Ozcare
Ms Glover commenced employment with Ozcare on 14 December 2009, providing in home care as a care assistant. On 8 April 2020, Ms Glover received a letter from her employer informing her of the implementation of a mandatory vaccination program against influenza in accordance with a public health order made by the Queensland Government restricting access to aged care facilities. Ms Glover’s employer made a decision to extend this requirement to home care workers given their contact with elderly and vulnerable clients. All staff would need to be vaccinated by 1 May 2020 unless they had medical grounds for exemption and could provide evidence of this.
For the prior 10 years, Ms Glover’s employer had offered flu shots in the workplace. Ms Glover had, in previous years, declined the vaccination on the basis of an anaphylactic reaction to a flu shot she received as a child over 50 years prior in the Philippines. Ms Glover’s employer had, in all previous years, accepted this objection and not required Ms Glover to be vaccinated.
On 8 April 2020, Ms Glover replied to her employer’s letter noting her childhood reaction and declining to receive the flu shot. Ms Glover’s employer sought further details regarding her adverse reaction. Ms Glover’s GP provided responses to queries from the employer, noting that they did not have direct evidence of the adverse reaction as it had not occurred under their care.
On 16 April 2020, Ms Glover’s employer informed her that on the basis of being unvaccinated, she would not be eligible for further shifts from 1 May 2020. Following this, the employer sought to engage with Ms Barber on a number of occasions to discuss the vaccine requirement and her circumstances.
Ms Glover made a unfair dismissal application to the Fair Work Commission. The Fair Work Commission found that this dismissal was not harsh, unjust or unreasonable. Key to this decision was Ms Glover’s failure to provide evidence that she continued to suffer from her a condition that was likely to result in anaphylaxis should she have received a flu shot. Further, the employer’s requirement for home care staff to be vaccinated against influenza was lawful and reasonable.
Some key takeaways for employees
Your employer may require you to receive a vaccination. Whether or not this is a lawful and reasonable direction will depend on the industry. Given the federal government’s recent announcement, a requirement to be vaccinated against COVID-19 will most certainly be a lawful and reasonable direction for workers in the aged care sector.
This doesn’t mean you will have to get a vaccine if you work in the aged care sector. In the absence of an accepted medical exemption, however, you may very well lose your job if you don’t. Further, should you pursue an unfair dismissal claim with the Fair Work Commission, given recent decisions, you may face some significant hurdles in establishing that your dismissal was harsh, unjust or unreasonable.
Some key takeaways for employers
In the absence of any further government directions that extend beyond the aged care sector, any decision to mandate vaccination in the workplace should be made with caution. Dependent on circumstances any such requirement may be lawful and reasonable, but this is very much an evolving area of the law.
When considering dismissal for an employee who declines a mandated vaccination, you still need to be mindful that any termination follows due process, and does not run afoul of the general protection provisions of the Fair Work Act or of anti-discrimination law.
For more information around your particular circumstances, contact us for an obligation free appointment with one of our experienced employment law specialists.