One of the most topical questions for employers during the COVID-19 pandemic has been whether they need to introduce policies that mandate vaccinations and, if so, what can be done to enforce them in the workplace.
As with any other policy or procedure, employers need to assess whether it would be reasonable and lawful to require that their employees comply with a policy that mandates vaccinations. What is reasonable will differ for each employer and even between different positions within an organisation. There are different industry regulations, standards and personal circumstances that must be considered in each case.
In the recent decision of Barber v Goodstart Early Learning [2021] FWC 2156, the Fair Work Commission (FWC) had to consider all of these complexities to determine whether an employee who refused to comply with the employer’s vaccination policy was unfairly dismissed – whilst warning that its conclusions in relation to the employer’s mandatory vaccination policy should not be viewed as a firm position on mandatory vaccination policies in general.
In this matter, the employer – a large-scale childcare and early education provider – had introduced a policy in April 2020 which required all of its staff to receive the influenza vaccination unless they had a medical condition making it unsafe for them to do so.
The employee was a Lead Educator who had been employed by the employer for fourteen years before she was dismissed in August 2020. The employee was dismissed after she had refused to receive the vaccination and failed to provide medical evidence that satisfied the employer that she should have an exemption.
The employee advised the employer at the time of the policy roll-out that she had a sensitive immune system and a history of chronic auto immune disease and coeliac disease. She also advised the employer that she had had an adverse reaction to an influenza vaccination she received some six years earlier.
The employer provided the employee with multiple opportunities to obtain evidence from her treating doctors to confirm that she had a medical condition and that getting the vaccination would put her health at risk, including covering the costs of visiting the doctors. However, the doctors refused to make such a statement and the certificates only confirmed that the employee reported having a sensitive immune system, coeliac disease and an adverse reaction to the vaccination in the past.
In determining whether the employer had a valid reason to dismiss the employee, the FWC was satisfied that the employee had refused to comply with a reasonable and lawful direction to receive the vaccination and that this was misconduct which warranted her dismissal.
The FWC had regard to the fact that the employer was engaged in a highly regulated industry that was responsible for the safety of a particularly vulnerable group (children). The FWC noted that the industry is unique because, in addition to work health and safety obligations, employers also have obligations to implement health and hygiene practices, prevent the spread of infectious disease, take all reasonable steps to ensure policies and procedures are followed and ensure that every reasonable precaution is taken to protect the children from harm or injury.
The FWC accepted expert evidence that the vaccination was effective in reducing the risk of infection (even though its effectiveness varied from year to year). It also accepted evidence that it was a practicable control measure in an industry where educators were working in an environment where they encountered biological hazards on a regular basis and they had to be in close contact with children numerous times a day. Without a vaccination, an employer would have to implement various other impractical controls such as social distancing and wearing of personal protective equipment, which are unsuitable in a childcare environment, in order to comply with its statutory obligations.
On that basis, the FWC was satisfied that the policy was a reasonable and lawful one and that the employee had failed to comply with it. The employee had also failed to provide sufficient medical evidence to warrant a medical exemption.
The application was therefore dismissed.
This decision is a timely one – the question of whether or not an employer can mandate that their employees receive vaccinations has been firmly in the spotlight during the COVID-19 pandemic.
As this case demonstrates, the answer will depend on a range of factors including, most importantly, the industry in which the employer practices and the requirements of an employee’s position. Even though the policy in this decision was found to be a reasonable and lawful one, it will not be the same for every employer.
Employers should seek legal advice prior to implementing any such policy.
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