Manda­to­ry Work­place Vac­ci­na­tion: Reflec­tions on Recent Developments

With the cur­rent trou­bling Covid-19 clus­ter in NSW, and a deep con­cern about the rel­a­tive­ly low rates of vac­ci­na­tion of staff in some indus­tries which deal with the sick and the vul­ner­a­ble, most notably aged care, the issue of manda­to­ry work­place vac­ci­na­tion has gone from being an inter­est­ing the­o­ret­i­cal con­sid­er­a­tion to a mat­ter of imme­di­ate prac­ti­cal concern.

This con­cern result­ed in a Nation­al Cab­i­net State­ment, issued on 28 June 2021, in rela­tion to work­ers in aged care: 

“The Nation­al Cab­i­net agreed to man­date that at least the first dose of COVID-19 vac­cine be admin­is­tered by mid-Sep­tem­ber 2021 for all res­i­den­tial aged care workforce. 

The Nation­al Cab­i­net agreed that COVID-19 vac­ci­na­tions are to be man­dat­ed for res­i­den­tial aged care work­ers as a con­di­tion of work­ing in an aged care facil­i­ty through shared state, ter­ri­to­ry and Com­mon­wealth author­i­ties and com­pli­ance mea­sures.”

Here are some obser­va­tions on var­i­ous recent devel­op­ments relat­ing to manda­to­ry work­place vaccination.

The Role of Government

Some indus­tries and employ­ers have asked that gov­ern­ments (whether state or fed­er­al) issue a man­date that staff in their indus­try must be vac­ci­nat­ed against Covid-19. For exam­ple, fol­low­ing the direc­tive that aged care work­ers must be vac­ci­nat­ed against Covid-19, there were calls to man­date a sim­i­lar require­ment for dis­abil­i­ty sup­port work­ers (an approach reject­ed by Nation­al Cab­i­net when it met on 9 July 2021).

Along sim­i­lar lines, some oth­er employ­ers have cit­ed a lack of gov­ern­ment man­date as the rea­son why a sig­nif­i­cant per­cent­age of their staff have not been vac­ci­nat­ed to date.

In short, how­ev­er, the lack of a gov­ern­ment man­date or order for staff in a par­tic­u­lar indus­try to be vac­ci­nat­ed does not nec­es­sar­i­ly pre­clude an employ­er, at its own ini­tia­tive, man­dat­ing Covid-19 vac­ci­na­tion for its staff. It is an option that will be open to some employ­ers, par­tic­u­lar in indus­tries such as aged care and health care. Employ­ers need not (and should not), in effect, out­source the deci­sion to gov­ern­ment. To some extent, both employ­ers and gov­ern­ment have been look­ing to the oth­er to expe­dite the vac­ci­na­tion roll-out process in work­places where Covid-19 risk mit­i­ga­tion mea­sures are crit­i­cal. Ulti­mate­ly the legal risk lies with employers.

An employ­er can poten­tial­ly man­date vac­ci­na­tion pur­suant to its right to issue ​‘law­ful and rea­son­able’ direc­tions to employ­ees. A fail­ure to adhere to a law­ful and rea­son­able direc­tion can result in dis­ci­pli­nary action against an employ­ee, includ­ing ter­mi­na­tion of employ­ment. To be in a posi­tion to issue such a direc­tion, an employ­er needs to be able to demon­strate that vac­ci­na­tion of employ­ees is an impor­tant con­trol mea­sure to pro­tect staff, clients and mem­bers of the pub­lic who inter­act with the work­place from the risk of Covid-19 infec­tion. This would, of course, large­ly depend on the nature of the employer’s busi­ness or under­tak­ing and the inher­ent duties of the employ­ees who would be sub­ject to the manda­to­ry vac­ci­na­tion direc­tion. The crit­i­cal ques­tion in rela­tion to those employ­ees: can they per­form the inher­ent duties of their posi­tion safe­ly with­out being vac­ci­nat­ed against Covid-19?

An addi­tion­al con­sid­er­a­tion for employ­ers is whether there are any exten­u­at­ing cir­cum­stances that would make a manda­to­ry vac­cine direc­tion unrea­son­able and there­fore unlaw­ful in respect of a par­tic­u­lar employ­ee. For exam­ple, there may be some employ­ees who have a med­ical con­di­tion that pre­vents them from receiv­ing a par­tic­u­lar type of Covid-19 vac­cine or a Covid-19 vac­ci­na­tion generally. 

There have been three recent Fair Work Com­mis­sion unfair dis­missal deci­sions that con­sid­ered manda­to­ry flu vac­ci­na­tions, each of which found in favour of the right of employ­ers to man­date such vac­ci­na­tions in the cir­cum­stances of each case.

By way of illus­tra­tion, in one of those cas­es, Ms Bou-Jamie Bar­ber v Good­start Ear­ly Learn­ing [2021] FWC 2156 (Bar­ber), Deputy Pres­i­dent Lake exam­ined whether the direc­tion giv­en by the employ­er to an employ­ee work­ing in child care was ​“rea­son­able” by con­sid­er­ing fac­tors such as gov­ern­ment rec­om­men­da­tions; the need to ensure safe­ty and wel­fare; con­trol meth­ods (which were found to be dif­fi­cult to imple­ment giv­en the age and lack of matu­ri­ty of chil­dren in care – hence the impor­tance of employ­ee vac­ci­na­tion as a con­trol mea­sure); whether the vac­ci­na­tion pol­i­cy was rea­son­ably and appro­pri­ate­ly adapt­ed (tak­ing account of med­ical exemp­tions); union con­sul­ta­tion (which was giv­en lit­tle weight); and imple­men­ta­tion (includ­ing ample time to achieve com­pli­ance or raise an objection). 

Deputy Pres­i­dent Lake con­clud­ed that the employ­er require­ment to be vac­ci­nat­ed was rea­son­able (at para­graph 346):

“Good­start oper­ates with­in a high­ly reg­u­lat­ed envi­ron­ment, which cre­ates statu­to­ry oblig­a­tions beyond that of a nor­mal employ­er; safe­ty and qual­i­ty care are of para­mount impor­tance and this is the envi­ron­ment in which Goodstart’s pol­i­cy must be scru­ti­nised. The child­care indus­try faces unique organ­i­sa­tion­al chal­lenges which make oth­er con­trols less effec­tive, or imprac­ti­ca­ble. I am sat­is­fied that it is rea­son­able for a child­care provider to man­date flu vac­ci­na­tion for those staff who deal with chil­dren on such a reg­u­lar basis, and in such close prox­im­i­ty. While the pol­i­cy requires manda­to­ry vac­ci­na­tion, it does allow for med­ical exemp­tions and Good­start cov­ered the expens­es asso­ci­at­ed with the pol­i­cy and pro­vid­ed extend­ed time frames for Ms Bar­ber to gain com­pli­ance. I am sat­is­fied that ​‘a rea­son­able employ­er, in the posi­tion of actu­al employ­er and act­ing rea­son­ably, could have adopt­ed the pol­i­cy.”

For the sake of com­plete­ness it should be not­ed that Deputy Pres­i­dent Lake was at pains to cau­tion against using this deci­sion, which relat­ed to flu vac­ci­na­tion and turned on its own facts, as a guide for Covid-19 vac­ci­na­tion. With respect to his Hon­our, how­ev­er, it is very like­ly that sim­i­lar gen­er­al prin­ci­ples will apply, albeit to a dif­fer­ent set of cir­cum­stances, in the con­text of Covid-19 vaccinations.

Of course, if an employ­er forms the view it needs its employ­ees to be vac­ci­nat­ed to man­age the Covid-19 safe­ty risk, it makes strate­gic sense to seek the gov­ern­ment man­date it. Such a man­date will large­ly defeat an argu­ment advanced by an employ­ee that a vac­ci­na­tion direc­tion from an employ­er will not be law­ful and rea­son­able. It also ensures a con­sis­tent and prac­ti­cal approach across an indus­try, so that a respon­si­ble employ­er is not placed at a com­pet­i­tive dis­ad­van­tage in attract­ing or retain­ing staff to an employ­er which does not insist on vaccination.

If an employ­er, how­ev­er, wants to imple­ment a pol­i­cy of manda­to­ry work­place vac­ci­na­tion, the absence of a gov­ern­ment man­date will not, of itself, be fatal to that pol­i­cy. It might still be able to pro­ceed. Employ­ers are not total­ly depen­dent on the posi­tion adopt­ed by the gov­ern­ment. That posi­tion has, to date, been to active­ly encour­age rather than man­date vac­ci­na­tion, con­sis­tent with the broad­er com­mu­ni­ty mes­sages relat­ing to Covid-19 vac­ci­na­tion. This is also broad­ly reflect­ed in the posi­tions adopt­ed by agen­cies such as Safe Work Aus­tralia and the Fair Work Ombudsman. 

A meet­ing on 7 July 2021 between some of Australia’s largest and most promi­nent employ­ers and the fed­er­al Trea­sur­er explored ways in which those busi­ness­es could help accel­er­ate the vac­cine roll-out, includ­ing vac­ci­nat­ing staff (on a vol­un­tary basis). While manda­to­ry vac­ci­na­tion might arguably be an option for many employ­ers (includ­ing, poten­tial­ly, those in retail or hos­pi­tal­i­ty), the over­whelm­ing pref­er­ence of large employ­ers present­ly seems to be to encour­age, rather than com­pel, Covid-19 vac­ci­na­tion, in indus­tries where it is not crit­i­cal­ly imper­a­tive. This approach makes sense for both prac­ti­cal and work­place cul­tur­al reasons.

The AstraZeneca Per­cep­tion Problem

In order to effec­tive­ly man­date vac­ci­na­tion for employ­ees, vac­cines need to be avail­able to them.

The vac­cine that is read­i­ly avail­able, AstraZeneca, is not rec­om­mend­ed by the Aus­tralian Tech­ni­cal Advi­so­ry Group on Immu­ni­sa­tion (ATA­GI) for those under 60 years of age. That has changed; it was orig­i­nal­ly not rec­om­mend­ed by ATA­GI for those under 50 years, which then became 60. 

A direc­tion from an employ­er to its employ­ees under 60 years of age to have a Covid-19 vac­ci­na­tion, where the only vac­cine avail­able to those employ­ees in the time frame stip­u­lat­ed for com­pli­ance is AstraZeneca, will almost cer­tain­ly not be held to be rea­son­able in light of the ATA­GI advice.

What about employ­ees over 60 years, for whom AstraZeneca is rec­om­mend­ed by ATA­GI? The flu vac­ci­na­tion cas­es show that, in con­sid­er­ing whether a manda­to­ry vac­ci­na­tion direc­tion is rea­son­able, the Fair Work Com­mis­sion will close­ly exam­ine the objec­tive mer­it of an employee’s argu­ments that they can­not be safe­ly vac­ci­nat­ed. This will include a foren­sic con­sid­er­a­tion of the med­ical evi­dence relat­ing to that employ­ee and the broad­er sci­en­tif­ic evi­dence per­tain­ing to the vac­cine itself. 

Even though the Fair Work Com­mis­sion has shown it is dis­in­clined to sup­port an employee’s vac­cine hes­i­tan­cy, even when based on a belief the employ­ee gen­uine­ly holds about the harm the vac­cine might do to them, where an employ­ee over 60 indi­cates they are will­ing to have a non-AstraZeneca vac­cine (such as Pfiz­er or Mod­er­na) but not AstraZeneca, query whether the com­mis­sion would con­sid­er a ter­mi­na­tion of employ­ment based on a fail­ure to fol­low the direc­tion with­in a time frame dur­ing which only AstraZeneca is avail­able, to be fair. Right­ly or wrong­ly, many peo­ple in that age brack­et are con­cerned by AstraZeneca, and in Fair Work Com­mis­sion pro­ceed­ings would be able to cite the shift­ing advice from ATA­GI and some report­ed state­ments made by health offi­cials, as a basis for that con­cern. The employ­ee would argue that they aren’t vac­cine hes­i­tant (as in refus­ing to have a Covid-19 vac­cine at all), but rather exer­cis­ing pru­dent vac­cine pref­er­ence, con­cerned about being (due to avail­abil­i­ty) effec­tive­ly forced to have a type of the vac­cine with which they have seri­ous reservations. 

Unless the employ­er could demon­strate that it was imper­a­tive the vac­ci­na­tion for an employ­ee in the cat­e­go­ry described above be under­tak­en before a non-AstraZeneca alter­na­tive was avail­able, and that a way of avoid­ing the ter­mi­na­tion of employ­ment until that occurred could not be offered (such as the employ­ee going on leave or being giv­en alter­na­tive duties), it is like­ly the Fair Work Com­mis­sion would side with the employ­ee in unfair dis­missal pro­ceed­ings result­ing from a fail­ure to com­ply with a direc­tion. The employ­er would need, among oth­er things, to demon­strate why the employ­ee’s vac­cine pref­er­ence could not be accom­mo­dat­ed pri­or to ter­mi­na­tion of employment.