Australia is currently experiencing several community outbreaks across the country.  Across the nation many restrictions have been re-introduced in recent weeks.

Unvaccinated workers working in high risk workplaces can be a significant contributing factor to the spread of the COVID-19 virus.  There is also mounting pressure on Federal, State and Territory Governments to mandate COVID-19 vaccination for other industries and occupations.

In this Employment Update we will cover some of the key issues employers need to consider regarding mandating the COVID-19 vaccination.  We will also look at a case study of the recent outbreak in Eastern Sydney, which was linked to an unvaccinated airport driver, and an unfair dismissal claim made by an employee refusing to comply with mandated flu vaccination requirements.

Public Health Orders

Firstly, while National Cabinet have indicated the “importance of national coordination”, employers need to be aware that the various state and territory health agencies are also instrumental in issuing (and retracting) Public Health Orders concerning particular industries and workers.  In such volatile times, it is extremely important that employers stay informed on matters such as mandatory vaccination orders, other Public Health Orders (restrictions) and COVID Safe Plans applicable to their workers and/or industry.

Case Study

New South Wales have recently introduced new rules after confusion over whether an airport driver linked to the Eastern Sydney COVID-19 outbreak was in breach of the law.  The unvaccinated and potentially unmasked limousine driver responsible for transporting international flight crew and passengers tested positive to the COVID-19 – Delta strain.

NSW police and SafeWork NSW are currently investigating the actions of the driver.  In the meantime, NSW Health have amended the Public Health Order to require drivers and passengers in a vehicle transporting international aircrew or passengers to wear a mask.  NSW have now made the COVID-19 vaccination mandatory for designated airport workers, quarantine facility workers and transportation providers.  Importantly, employers are responsible for ensuring and managing employee compliance with the Public Health Order.

Regardless of a Public Health Order, this case study highlights the importance of employers (and principal contractors) conducting a workplace risk assessment and implementing control measures to eliminate or reduce the risk of contracting (or transmitting) COVID-19.

Work, Health and Safety Laws

With or without COVID-19, employers have general duties under the work, health and safety legislation to eliminate, or if not reasonable practicable, minimise the risks (or the exposure to risks) in the workplace.

Regardless of a Public Health Order, employers have a positive obligation under workplace, health and safety laws to engage with the risk assessment process and implement reasonable practicable and common-sense approaches to eliminate and reduce risks to health and safety in the workplace.  There is a foreseeable argument that an employer could make the COVID-19 vaccination mandatory in its workplace, where a risk assessment supports such action.  However, such a step should only be taken after significant education and consultation with the workplace, and definitely only after taking appropriate legal advice regarding the decision.

Lawful and reasonable directions

Making the vaccination mandatory in a workplace, effectively requires an employer to give an employee a direction to do so. Employers have a well-established right to issue a worker with a lawful and reasonable direction.  In determining whether the direction is reasonable and lawful, employers need to consider the inherent requirements of the workers duties and the workplace environment.

The lawfulness of a direction is easier to establish when supported by legislation or a Public Health Order – for example, the recent national cabinet decision to make the COVID-19 vaccine mandatory (at least the first dose) for all residential aged care workers by September 2021.  However, to ensure the direction given at the workplace is lawful, an employer must comply with any relevant provisions under an employee’s employment contract, enterprise agreement or modern award (e.g. consultation requirements).

Subject to compliance with any law, contract or industrial instrument, an employer may issue a direction requiring employees to have the COVID-19 vaccination based on a workplace risk assessment (and in the absence of a Public Health Order), if the direction does not offend other laws (for example, discrimination legislation).  Such a step should only be taken by an employer on a fully informed and considered basis and with legal advice.

It is essential that employers obtain specialist employment law advice before issuing a lawful direction, and certainly before disciplining or terminating an employee for non-compliance with a direction requiring an employee to be administered with a COVID-19 vaccination.

Employer Promotion and Consultation Requirements – COVID-19 Vaccine

The Australian Government Department of Health, the Therapeutic Goods Administration (‘TGA’) is responsible for the regulation of the advertising of therapeutic goods in Australia and has recently released guidance on acceptable workplace communication concerning COVID-19 vaccines.

Employers are able to promote registered COVID-19 vaccine, offer employees incentives and rewards for receiving registered COVID-19 vaccine provided they comply with guidance material and legal instruments – the Therapeutic Goods (Restricted Representations – COVID-19 Vaccines) Permission 2021 and the Therapeutic Goods Amendment (Therapeutic Goods Advertising Code) Instrument 2021.

Employers promoting, advertising or communicating with employees about COVID-19 vaccination must ensure lawful communications (representations) are observed.  Permissions to provide lawful communications about COVID-19 vaccines remain operative until 31 December 2022 (unless extended).

There are significant restrictions of what employers can say and do to encourage COVID-19 vaccination.  It is essential that employers educate themselves on what they can say and do, and we strongly recommend that employers seek specialist employment law advice before promoting, advertising or making offers to workers to receive the COVID-19.

Case Summary

Employee who refused to comply with mandatory flu vaccination was not unfairly dismissed

In April 2021, Commissioner McKenna of the Fair Work Commission rejected an unfair dismissal application by a receptionist / clerical employee employed at a high-care aged care facility.  The employee refused to comply with the not-for-profit organisation’s mandatory vaccination policy (which was a result of the NSW Public Health Order).

The employee had previously received the work-administered influenza (‘flu’) vaccination.  However, the employee claimed that after receiving the most recent flu shot, she developed a severe skin reaction that also affected her internal organs (‘medical condition’).  The employee alleged that the medical condition persisted for 10 months and that she was allergic to the vaccination and argued that she was excluded from the mandatory vaccination policy on the basis of a medical contraindication.

The employee provided her employer with a letter from a Practitioner of Chinese Medicine confirming the employee had “concerns” about having the compulsory vaccination.  The practitioner confirmed that the employee had been prescribed with “immune boosting herbs as well as antiviral herbs in a formula that has been being [sic] used in China in the prevention of Covid-19 and seasonal flues”.

The employer initially opted to stand the employee down without pay until the Public Health Order was lifted.  The employee during this time questioned the government directive and requested scientific evidence to support the employer’s mandatory vaccination policy.  The employee communicated to the employer that based on personal research she had concluded that  “flu vaccine is not completely safe or effective”.

The NSW government extended the Public Health Order, leading the employer to require the employee to “show cause” why her employment should not be terminated (given her refusal to have the vaccination).  The employee provided a “Letter of Support” from a general practitioner that the employee has a medical contraindication based on a “severe allergic reaction to the influenza vaccine 4 years ago” resulting in “severe facial and neck swelling with a wide spread erythematous over her face, chest and arms”.  Despite the letter of support the employer considered that the employee’s medical condition was not a “quantifiable contraindication” and terminated the employee’s employment.

The Commission considered a number of factors when determining whether the employer had unfairly dismissed the employee.

Medical condition versus personal view

In considering whether the employee’s termination was harsh, unjust or unreasonable, Commissioner McKenna acknowledged the employee’s right to make the “personal choice” not to be vaccinated.  However, the Commission noted the lack of contemporaneous evidence concerning the medical condition.  The employee did not take any sick leave and “initially worked with a cotton scarf around [her] neck to cover the rash and as the burns continued to intensify, [she] wore copper infused towels as a scarf and then ice packs strapped to [her] neck and arms”.  There was also no evidence of “contemporaneous examination and/or diagnosis by any medical doctor concerning the condition”.

Reasonable and lawful direction

While there was contention as to whether the employer had issued the employee with a direction to receive the 2020 flu vaccination, Commissioner McKenna concluded that:

“It seems to be that if a direction in fact had been given by the [employer] to the [employee] to have a flu shot, any such direction would not only have been lawful it would have effectively reflected what in fact was the law as it applied in 2020 concerning employees working within NSW residential aged care facilities…”

Inherent requirements of position 

The Commission concluded that without a current flu shot that the employee was unable to perform the ‘inherent requirements of the job”.  The Commission considered that the employer “acted in a prudent and reasonable way” when excluding the employee from the workplace in the circumstances.

Other factors

In addition to the lack of evidence supporting the employee’s medical condition, the Commission noted that the employee considered the possibility of seeing an immunologist as suggested by a doctor but did not do so.

Procedural fairness

The Commission was satisfied that procedural fairness had been afforded to the employee as the employee had been informed of the purpose of meetings, the compulsory nature of the flu shot and had been invited to “show cause” why her employment should not be terminated.

Please Take Advice Before Acting

Whether an employer can require employees to have the COVID-19 vaccination is a complex issue.  Aitken Legal strongly recommend that employers seek advice before directing employees that the COVID-19 vaccination is mandatory. There are manly legal and practical considerations that need to be examined before making the decision to mandate the COVID-19 vaccination, and this should only be done under appropriate legal advice.

For assistance contact one of Aitken Legal’s specialist employment lawyers.