News & Insights

The COVID-19 pandemic and associated Government directions have forced employers to think differently about what it means to provide and maintain a safe and healthy working environment for their workers.

As Australia’s COVID-19 vaccination roll-out nears, many employers are now considering whether COVID-19 vaccinations should be a requirement for their workforce.

occupational health and safety obligations

The Work Health and Safety Act 2011 (Cth) (WHS Act), and equivalent state health and safety legislation (in Victoria, the Occupational Health and Safety Act 2004), broadly require employers to ensure, so far as is reasonably practicable, the health and safety of their workers and other persons while in the workplace.

Implementing mandatory COVID-19 vaccinations may seem a practical measure to help meet this obligation.  However, employers can only enforce directions to employees that are “lawful and reasonable” in the circumstances.

pre-employment considerations

The question of whether prospective employees have been (or are willing to be) vaccinated against COVID-19 may also be relevant to recruitment decisions and pre-screening practices.

For example, if a prospective employee has a disability and has not been vaccinated due to medical reasons in relation to that disability, care should be taken not to contravene anti-discrimination legislation by not offering employment on that basis, taking into account the inherent requirements of the position concerned.

fair work commission decisions

While the legality of mandating the COVID-19 vaccine in workplaces is yet to be determined, recent decisions of the Fair Work Commission have provided some guidance on the issue.

Arnold v Goodstart

In Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6093, a childcare centre implemented a free mandatory influenza vaccination policy for all of its workers, except for those with a valid medical exemption. A Group Leader at the childcare centre refused to receive the vaccine, but not on medical grounds. In response, the childcare centre terminated the employee’s employment and the employee made an unfair dismissal application against the employer.

In considering the merits of the employee’s claim in relation to a jurisdictional objection, the FWC found it was arguable that the childcare centre’s policy of mandatory vaccinations was lawful and reasonable in the circumstances, given the centre was involved in the provision of care to children, including those who were too young to be vaccinated or could not be vaccinated for health reasons.

Glover v Ozcare

This issue was considered again more recently in Glover v Ozcare [2021] FWC 231. In this case, an employer placed one of its employees on indefinite unpaid leave after she refused to receive a mandatory influenza vaccination at her workplace. The employee objected to receiving the vaccine because she had previously suffered an anaphylaxis reaction from the injection. Despite this, the employer argued vaccination against influenza was an inherent requirement of the employee’s position, as her role required her to administer care and assistance to vulnerable members of the community.

While the outcome of the employee’s claim is yet to be determined, the FWC has commented that the question of whether mandating the vaccination was “lawful and reasonable” in the circumstances required careful consideration of “each circumstance of the person’s role… and the workplace in which they work”.

key lessons for employers

An employer’s decision to require COVID-19 vaccinations is a complex ethico-legal issue that should involve careful consideration of an employer’s safety obligations (based on the relative risk profile), limitations in relation to “lawful and reasonable” directions, and personal and medical circumstances that might lead individual employees to object to receiving the vaccine.

While encouraging workers to be vaccinated may be relatively uncontroversial, whether to mandate the COVID-19 vaccination is a complex matter. Employers will need to consider work health and safety risks in their particular industry and the nature of each employee’s role, drawing on up-to-date guidance (or even directions) from State and Federal Governments, and taking into account other safety measures that are available in relation to the risks associated with COVID-19.

Employers who decide to mandate the COVID-19 vaccine should:

• develop a policy dealing with mandatory COVID-19 vaccinations and a procedure for raising and responding to any objections made by employees;
• consult with employees in relation to why mandatory COVID-19 vaccinations are reasonable and necessary in the circumstances, and why alternative, less-invasive measures are inadequate; and
• engage with relevant employees to understand reasons for declining the COVID-19 vaccination and whether these reasons are legitimate and can be addressed (such as by implementing other changes) before any disciplinary action.

If you would like further information in relation to your business’ health and safety obligations and the COVID-19 pandemic, or if you require tailored and practical assistance implementing a vaccination policy in your workplace, please contact our Employment, Safety and Migration team.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.