Recently, the issue of employer mandated vaccines was considered by the Fair Work Commission (FWC) in the context of an unfair dismissal application. In this case, an employee was dismissed for failing to follow a direction from their employer to have the flu vaccination. The employer is a childcare provider and issued a direction to all staff, other than those who, for medical reasons, are unable , to get the flu vaccination.
While the FWC decided that the employee was not unfairly dismissed, the FWC was very clear that the circumstances of this case is not to be taken as precedent that all employers could direct their employees to be vaccinated for flu, COVID-19 or any other condition.
The decision highlighted that the circumstances of each employment arrangement and the individual circumstances of each employee would be critical in understanding whether a direction to be vaccinated is reasonable and lawful. Furthermore, and importantly, in this case the employee asserted that they had medical reasons to refuse the direction for vaccination but failed to provide any valid supporting medical evidence.
Despite these highly specific circumstances, the case does confirm what we have known regarding mandated vaccinations for some time, being:
- It is highly unlikely that most employers will be able to require their employees to have vaccinations. There are some exceptions, for example the Government has mandated flu vaccinations in aged care facilities, and recommend them in other settings such as childcare or working with vulnerable people;
- The federal government has not mandated COVID-19 vaccinations for any occupational group, although they have highly recommended them for front line workers;
- Some states, such as Queensland, have mandated that only vaccinated workers are able to work with covid positive patients (and in some instances suspected covid positive patients) in the health system;
- Unless there is a sound workplace health and safety or public policy reason within a workplace for a mandatory direction to employees to be vaccinated, it is likely that such a direction would not be considered to be “lawful” or “reasonable”;
- Even where it is lawful to issue a direction to employees to be vaccinated, the employer must demonstrate reasonable adjustment where employees genuinely are unable to comply with the direction.
We will continue to monitor any changes in case law or government policy which may impact on this issue. If you believe it may be appropriate to require vaccinations of any kind in your workplace, we highly recommend you obtain advice prior to taking any such action. For assistance please contact our HR and IR Consulting division via the form below or on 1300 200 725.
Author: Cheryl-Anne Laird
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