As not-for-profits seek to resume COVID-normal service, many organisations will want their staff and volunteers to be vaccinated, for everyone’s protection. But legally it’s not so simple, according to the latest advice from Our Community’s legal partner Maddocks.
In short, they say that organisations may be within their rights to establish mandatory vaccination policies, but their effectiveness will depend on a number of factors.
Critically, organisations should be cautious not to cite vaccinations as being an “inherent requirement” for their workers.
In certain roles and under specific health orders, some workers will need to get a jab – for example, a chief health officer may require hotel quarantine workers and others to get one – but other employers can’t assume the same.
Maddocks senior associate Ali Gallaher and firm partner Catherine Dunlop write in a recent summary report that guidance from authorities suggests that “each employee’s position may need to be considered on a case-by-case basis”.
“We expect that this topic may be the subject of further regulatory guidance and case law, given the strong views involved and the recent cases dealing with influenza vaccinations”.
According to the summary: “There is no one-size-fits-all approach to this issue. What is lawful will depend entirely on the circumstances, including the work-related risk being addressed by vaccination, the nature of the workplace, the employees and the work they do.”
Recent cases affecting workplace vaccinations
Maddocks illustrated the situation by referring to an April 2021 ruling by the Fair Work Commission involving the not-for-profit Goodstart Early Learning, which is one of Australia’s largest childcare providers in the country with nearly 650 centres.
Goodstart terminated lead educator Bou-Jamie Barber’s employment in August last year, after she refused to get a flu vaccination, citing a “sensitive immune system”, and an adverse reaction to a jab 11 years earlier.
Goodstart had in place an immunisation policy requiring staff to get a jab unless they suffered a medical condition, and so dismissed Ms Barber on the basis of her breaching the policy and failing to meet the “inherent requirements of her role”.
Deputy President Nicholas Lake dismissed the unfair dismissal application on the basis that Ms Barber had failed to comply with the reasonable direction in the immunisation policy, and therefore had engaged in misconduct.
As Maddocks explained: “The question is whether the employer’s choice to require vaccination is reasonable. If the direction is reasonable and not otherwise unlawful, a failure to comply without a fair excuse will be misconduct.”
But Mr Lake also ruled that although vaccination reduces the health and safety risk in the workplace, it did not make vaccination essential to a role.
That is, unless vaccination affected an employee’s ability to perform their role, it was unlikely to be an inherent requirement.
To illustrate, in a separate case also heard this year before the Fair Work Commission, receptionist Jennifer Kimber refused a jab at Sapphire Coast Community Aged Care.
In that case, the high-care aged care facility had similarly introduced a mandatory vaccination policy. But in that ruling, a vaccine was considered an inherent requirement of the role, because in NSW at the time the government stipulated that people could not enter aged care facilities without an up-to-date flu shot.
Those two cases show that employers should exercise “great caution in describing a requirement to be vaccinated as inherent, or contemplating dismissal on this basis”.
But in another significant ruling handed down in late May, the Commission supported the “lawful and reasonable” decision by Ozcare to terminate the employment of Maria Glover after she had refused a flu vaccine. (Maria Corazon Glover v Ozcare  FWC 2989)
Maddocks says that decision further bolsters the position of employers wanting to mandate vaccines in “high-risk industries” such as aged care, disability services and in-home care.
What are the keys to a good vaccination-at-work plan?
Maddocks suggests that factors to be considered when considering a mandatory vaccination policy include:
- workplace health and safety and occupational health and safety obligations
- legal and government recommendations for your sub-sector
- the type of work and level of risk
- the severity of the illness and effectiveness of the vaccine in question
- how contracts require compliance with policies
- the features of any mandatory vaccination policy.
Maddocks suggests any policy should consider issues such as whether it allows for case-by-case exemptions on medical grounds to be fairly assessed, whether employers consulted before implementing any policy, and whether the organisation will cover the cost of vaccination.
In the meantime, the rules on vaccinations may continue to revolve around the effects/benefits of vaccines – including on transmission of viruses – and the risk of illness for workers. Maddocks suggests the legal situation may continue to change and urges organisations to undertake risk assessments and consultations before mandating any vaccinations.