Employers are legally obligated to take reasonably practicable steps to ensure workplace health and safety. This obligation has been unequivocally entrenched in Australian law, and yet remains a perpetual topic of debate amongst employers, particularly in light of the current COVID-19 pandemic.

Whilst the COVID-19 pandemic has resulted in the need for employers to quickly adopt a uniquely focused approach to workplace health and safety, vaccinations against diseases have been in existence long before the COVID-19 pandemic, along with the associated implications vaccinations present for both employers and employees.

Nonetheless, employers are now faced with the question of whether they can require employees to be vaccinated against COVID-19 as a prerequisite to attending the workplace. Unfortunately, there is not a one-size-fits-all answer to this; in fact, it is largely dependent on a number of factors, including the relevant industry, profession and individual needs of each workplace.  And, of course, any current government directions.

‘No jab, no office’

As a general rule of employment law, getting vaccinated should be a voluntary decision of an employee, whether against COVID-19 or otherwise.

In the context of the workplace, this means that unless there is a government public health order or a requirement in an employment contract or industrial instrument to receive a particular vaccination, employers do not have the right to direct employees to receive a vaccination as a precondition of entry into the workplace.

That being said, employers may still direct employees to receive a vaccination, provided the direction is lawful and reasonable in the circumstances. For a direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies.

Whilst the lawfulness and reasonableness of directing employees to receive the COVID-19 vaccination is yet to be tested in the Courts, it has recently been determined by the Fair Work Commission in the case of Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156 (Barber v Goodstart) that a direction mandating the flu vaccination for a childcare worker was lawful and reasonable in the circumstances to ensure the health and safety of employees and children in the employer’s care.

In that case, the employer implemented a vaccination policy mandating the flu vaccination for educators in contact with children in the workplace. The decision to make the flu vaccine mandatory was guided by strong public health advice from the Federal and relevant State government and was supported by the relevant union.

The employer in this case extensively consulted with its employees about the vaccination policy and allowed exemptions based on fully substantiated medical grounds, assessed on a case-by-case basis by an expert panel. It was therefore found that directing an employee (with no medical exemption) to receive the flu vaccine as a precondition to entering the worksite in the childcare industry was lawful and reasonable to ensure workplace health and safety in the circumstances.

Barber v Goodstart is an exemplary example of how appropriate adaption and implementation of a vaccination policy according to public health advice, albeit for the flu rather than COVID-19, can assist employers meet workplace and safety obligations in a fair and transparent manner.

Vaccination refusal

There is a term implied by law in all employment contracts which requires an employee to obey any lawful and reasonable directions of their employer. This obligation goes to the very core of a contractual relationship between an employer and an employee, as the relationship cannot exist without the employer’s right of control over its employees.

In this regard, should an employer make a lawful and reasonable direction that its employees must  receive a vaccination in order to attend the workplace and an employee refuses to do so, the employer may consider subjecting the employee to appropriate disciplinary action, which could lead to dismissal, unless a legitimate exemption applies.

Whether an exemption is legitimate in the context of workplace safety must be assessed on a case-by-case basis but has historically included medical grounds backed up by tangible evidence.

In these cases, employers should only consider disciplinary action or dismissal if an employee is unable to show why they should be exempt from following a lawful and reasonable direction by the employer for the employee to be vaccinated against COVID-19. This may include providing conclusive medical evidence proving it is unsafe for a particular employee to receive a vaccination due to an existing health condition.

If we go back to the example of Barber v Goodstart, the employee was dismissed after refusing to receive the flu vaccine, as she claimed it was medically unsafe based on an existing medical condition. However, as she could not provide medical evidence to support her position, her employer terminated her employment.

The Fair Work Commission found that, in the absence of medical evidence supporting the employee’s claim, the employer’s decision to dismiss the employee for refusing receive the vaccination was lawful, reasonable and constituted proper grounds for dismissal, as the employee could not  perform the inherent requirements of her role without the flu vaccine. Had the employee obtained sufficient medical evidence showing that it was unsafe for her to receive the flu vaccination, she may have been exempt from obeying the employer’s direction to be vaccinated.

In Barber v Goodstart, the Fair Work Commission stressed that a legitimate exemption could possibly extend to reasons beyond those of a medical nature in the context of COVID-19 depending on the unique circumstances of each individual case. Nonetheless, regardless of the circumstances, employers should always take a considered approach to disciplinary action and should avoid dismissal without providing procedural fairness.

Implementing a COVID-19 vaccination policy

Employers should consider implementing a COVID-19 vaccination policy if the employer intends to make vaccination a compulsory condition of entry into the workplace.

The policy should clearly outline what the employer requires of each employee including informed consent to collect and store personal information about their vaccination status. It should also outline how the employer will support the employee, particularly in the event that any adverse side effects are experienced by the employee in the short- and/or long-term.

Example: Vaccination Deadline

If reasonable based on the individual circumstances of each case, employers could consider including a realistic deadline for employees to receive the vaccine in their vaccination policy, if it intends to direct its employees to return to working onsite.

Should an employee fail to receive the vaccine by the deadline without a valid excuse, then the employer should clearly outline all possible repercussions in its vaccination policy including potential termination on the grounds of failing to follow a lawful and reasonable direction.

However, employers must remain mindful that termination should always be an option of last resort, especially if an employee has clearly displayed an intention to receive the vaccine but has been unable to due to factors out of their control, such as lack of supply.  In these cases, employers should do all things necessary to accommodate employees unable to access the vaccine by allowing them to continue working from home or temporarily modifying the employee’s duties in a way that would enable the employee to continue working safely whilst waiting for the vaccine, if possible.

If it is not possible for the employee to continue working from home or otherwise be usefully employed whilst awaiting the vaccination, employers could consider standing down an employee or directing them to take unpaid leave until the employee receives the vaccination, provided it is reasonable in the circumstances and no other option is available.

Moreover, if reasonable in the circumstances, employers should also consider implementing support mechanisms within its vaccination policy to provide employees with sufficient resources and opportunities to receive the vaccine. This could include organising to have a doctor attend the workplace to administer the vaccine to willing employees, for example.

Following all reasonable efforts made by the employer to assist employees in adhering to its vaccination policy and the exhaustion of all possible options, only then should disciplinarily action or possible termination be considered by the employer in response to an employee failing to follow a lawful and reasonable direction. The key to an employer’s vaccination policy is to promote transparency and fairness in way that ensures employees are well-informed and involved in the process. This should include outlining how employees can raise any concerns or seek exemptions from the policy and the implications of non-compliance. It may also include incentivising the COVID-19 vaccination as a measure to minimise the health and safety risks associated with the virus, if reasonably practicable.

In summary, in the absence of a public health order mandating that employees in a particular industry must receive the COVID-19 vaccination, employers must make an assessment based on its individual circumstances as to whether it will be able to issue lawful and reasonable directions to its employees to receive the vaccination as a condition of entry into the workplace. This will include a careful balancing act in respect of the workplace health and safety risks associated with making the vaccine compulsory and the risks of not being vaccinated in the midst of a global pandemic.

Should an employer decide to mandate the COVID-19 as a prerequisite of attending the workplace, appropriate precautions should be taken to clearly show a concurrent dedication to upholding workplace health and safety obligations and the fair treatment of all employee throughout the process.