HHG Legal Group Director, Murray Thornhill and Associate, Gemma Wheeler-Carver, from our Employment Law and Dispute Resolution teams, explore some key considerations for employers following the announcement of the COVID-19 Vaccine National Strategy.
Following Scott Morrison’s decision on 7 January to roll out the COVID-19 Vaccine National Strategy, businesses may be considering mandatory vaccinations for all employees to reduce the risk to their business, employees and customers. But what happens when your employees refuse to be vaccinated?
The main matters for an employer to consider before implementing and enforcing mandatory vaccination (whether COVID-19 or other) policies are:
- The employer’s obligation to provide a safe workplace for its employees;
- The specific needs of its customers and any other persons to whom it owes a duty of care (eg vulnerable customers such as children and aged care workers;
- The needs of its individual employees, both those ‘at risk’ and those with health or other reasons that do not allow them to have the vaccination.
Your employees are required to comply with the reasonable and lawful direction of their employer. These directions can relate to ensuring the health and safety of employees and customers, in compliance with the relevant health and safety legislation. Commonly, this includes requiring employees to undertake medical examinations to assess fitness for work, and requesting unwell employees to stay away from work to prevent the spread of illness. Recently this has included requiring employees to undertake a COVID-19 test or work from home, take personal leave or otherwise not attend work when unwell or required to self-isolate. These directions must be reasonable and lawful, and it is important the employers consider whether there is an alternative measure that could reasonably be taken instead.
Compulsory COVID-19 vaccination has not been tested in the Fair Work Commission at this stage. However, recently, the Commission considered the case of an employee who refused an influenza vaccination. Ms Nicole Arnold was an employee of a childcare centre, Goodstart Early Learning, which had arranged to pay for employees to have a mandatory vaccination. Exemptions were made for employees that demonstrated that they could not have the mandatory vaccination on medical grounds. Ms Arnold did not provide any such grounds.
The Commission was not required to make a final decision on the matter (as it determined that the application was made out of time and no extension could be given), however Deputy President Asbury noted that it is arguable that a policy requiring “mandatory vaccination is lawful and reasonable in the context of its [the employer’s] operations which principally involve the care of children, including children who are too young to be vaccinated or unable to vaccinated for a valid health reason”.
It is clear therefore, that certain workplaces, such as childcare and aged care centres, and potentially border security and travel employees, and others who work in close proximity to vulnerable persons or in high-transmission locations, may be able to put in place policies to require vaccinations but should carefully consider the necessity of the policy and any required exemptions. Other employers may also be able to justify a reasonable vaccination policy.
A failure to comply with a workplace policy, or a reasonable direction by an employer, can result in termination of employment or other disciplinary action (particularly if such a requirement is set out in an employee’s contract of employment). Therefore employers should:
- Carefully consider whether their workplace is one where a mandatory vaccination policy is appropriate;
- Implement processes to ensure employees are aware of the relevant policies and any directions related to vaccinations; and
- Follow appropriate processes for any employees who refuse that vaccination.
The consequences of improperly terminating an employee’s employment, or otherwise injuring their employment, can include damage to a business’s reputation, negative effects on employee morale, and claims for breach of contract, discrimination, unfair dismissal or adverse action. Whether or not you can terminate or otherwise make changes to your employee’s contract of employment on the basis that they cannot or will not be vaccinated will depend on the specific circumstances of the individual employment and the unique requirements of your workplace.
How HHG Legal Group can assist
If you are considering imposing mandatory vaccinations, or other directions, on your employees, we recommend that you seek legal advice as early as possible to minimise any risks to your business. Please contact our employment law team to assist you with tailored and practical guidance, including preparation of contracts and policies, advice on workplace health and safety, and representation in any employment law-related dispute.
 Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning  FWC 6083 copy of decision https://www.fwc.gov.au/documents/decisionssigned/html/pdf/2020fwc6083.pdf.