Is it legal to direct employees to be vaccinated against COVID-19?

Earlier this week, Qantas CEO Alan Joyce announced the airline would require international passengers to prove they had been vaccinated for COVID-19 before getting on an aircraft, describing the measure as a “necessity” when a vaccine becomes available. 

The decision has proved controversial, with some taking to social media to call for a boycott of the company.

This type of public outcry is both concerning and surprising, particularly when some countries already demand proof of vaccination against certain diseases as an entry requirement. 

While the federal government has recently clarified that a COVID-19 vaccine will not be mandatory in a general sense, the Australian COVID-19 Vaccination Policy does state there may be circumstances “where the Australian government and other governments … introduce border entry or re-entry requirements that are conditional on proof of vaccination”.

This would suggest Joyce’s comments are somewhat uncontroversial, given the federal government is already contemplating the need to implement similar nation-wide measures at airports. 

Nevertheless, the announcement by Qantas has prompted a fresh discussion about mandatory COVID-19 vaccinations, including in workplaces across Australia.

Subject to any direct government intervention on the issue, once a vaccine is available, employers may need to make a difficult decision as to whether they adopt a mandatory COVID-19 vaccination policy in the workplace.

In this article, I examine the current position on occupational vaccinations and whether an employer has the right to direct an employee to be vaccinated against COVID-19.

Lawful and reasonable directions

At the core of any employment relationship is the employer’s right to issue a lawful and reasonable direction to an employee. So, is it lawful and reasonable for an employer to direct an employee to receive a COVID-19 vaccine? 

The answer to this question will likely depend on the nature and surrounding circumstances of the request.

For example, where an employee routinely works with at-risk individuals such as children or the elderly, a direction to receive a vaccination may be lawful and reasonable.

This very question could have been answered by the Fair Work Commission (FWC) in two recent unfair dismissal claims: Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083 and Yngrid Mareza Mesones Tello v Goodstart Early Learning Ltd [2020] FWC 5515. 

The cases involved a group leader and an educator respectively, who were each directed by their employers to be vaccinated against influenza by May 29, 2020.

The employer provided free influenza vaccinations for all employees and provided a process by which employees with medical reasons for not being vaccinated could seek an exemption.

Both employees refused to comply with the direction and both were dismissed as a result. 

Unfortunately, both applications were filed out of time and were ultimately dismissed by the Fair Work Commission, meaning the reasonableness of the direction was not examined.

However, in Arnold, FWC deputy president Asbury noted the following:

“While I do not go so far as to say that the Applicant’s case lacks merit, it is my view that it is at least equally arguable that the Respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason. 

Prima facie the Respondent’s policy is necessary to ensure that it meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/or medical conditions. 

It is also equally arguable that the Applicant has unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position, which involves the provision of care to young children and infants.”

This extract addresses two important issues.

The first is that the employer in this instance had “balanced the needs of its employees” by allowing them to refuse the vaccination on reasonable medical grounds.

This type of exemption obviously supports the employer’s argument that the overall direction was a lawful and reasonable one.

The second important issue is that the deputy president considered that vaccination against influenza may have constituted an inherent requirement of the position. That is, an employee who provides care to young children and infants can only safely perform their role if they are vaccinated.

For the reasons that follow, this consideration is particularly important in the context of anti-discrimination legislation. 

Discrimination and the inherent requirements of the job

Opponents to mandatory vaccination often cite human rights infringements as a basis for their objection.

In the employment context, it is true that certain provisions in anti-discrimination legislation in states and territories prohibit discrimination in ways that could intersect with a person’s refusal to be vaccinated.

Similar provisions also exist at the federal level.

For example, the Fair Work Act 2009 (Cth) prohibits discrimination against an employee on the basis of their political opinion or religion. This could include political or religious opposition to vaccinations. 

However, an exception will ordinarily arise if the discriminatory action is taken because of the inherent requirements of the particular position concerned.

For example, as deputy president Asbury noted in Arnold, it may very well be a genuine and reasonable requirement of employment in the childcare sector that educators and other staff members be vaccinated so as to protect vulnerable children from the spread of disease. 

In the context of COVID-19, which is considered to be more infectious and more dangerous than influenza, this exception could arguably extend to all employment that involves physical interaction with others.

In other words, it could be an inherent requirement of employment generally that employees be vaccinated against COVID-19 so as to not risk infecting others.

Workplace health and safety

On the occupational health and safety front, controlling the spread of infection in the workplace is an obligation borne by all parties. 

For example, in Victoria, an employer owes a duty to employees to provide and maintain a working environment that is safe and without risks to health under the Occupational Health and Safety Act 2004 (Vic).

Similarly, employees owe a duty to their employer to take reasonable care for their own health and safety, as well as the health and safety of persons who may be affected by their acts or omissions in the workplace.

Employees must also cooperate with their employer in respect to any action taken by the employer to comply with a requirement imposed by the legislation. 

In light of these duties, it may be reasonable and perhaps even necessary for employers in particular sectors to implement a vaccination policy in order to protect the health and safety of all workplace participants. 

Legislative intervention in the health sector

Earlier this year, the Victorian parliament weighed in on this issue and passed the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020 (Vic) to amend the Health Services Act 1988 (Vic) and the Ambulance Services Act 1986 (Vic).

The stated purpose of the legislation was to enable the Department of Health and Human Services to direct hospitals and health service establishments to require employees to be vaccinated against specified diseases to enhance the protection of the health and safety of patients and employees.

The Victorian government noted in a media release at the time that the new laws would mean:

“Healthcare workers must be fully immunised to protect themselves and patients against the flu each year, as well as whooping cough, measles, chicken pox and hepatitis B. All healthcare workers in public and private hospitals and ambulance services with direct patient contact will be required to be vaccinated, including doctors, nurses, paramedics, dentists, orderlies, cleaners and staff working in public sector residential aged care services. Workers who refuse to be vaccinated may face work restrictions or be redeployed to other parts of the health service.”

The legislation also provides that any action that is taken to comply with a direction issued under the legislation does not constitute discrimination on the basis of political or religious belief or activity for the purposes of the Equal Opportunity Act 2010 (Vic). 

Legislation such as this obviously removes two important hurdles for employers seeking to implement mandatory vaccination policies.

The first is that it removes the question of whether or not a vaccination policy in and of itself will be lawful and reasonable.

The second is that it creates statutory protection against discrimination claims made by employees who assert that a direction to be vaccinated constitutes discrimination against them on the basis of their political or religious beliefs. 

In a wider sense, the Australian COVID-19 Vaccination Policy briefly addresses the issue of workplace vaccinations by noting that “some larger corporations and high-risk workplaces may establish workplace vaccination clinics in partnership with State and Territory health services or private providers”.

This possibility was echoed in a statement by Minister for Health Greg Hunt in a media release on November 5, 2020, which referred to key vaccination sites as potentially including workplaces such as aged care facilities.

This would appear to signal a broader occupational roll out of COVID-19 vaccines in the future. 

Vaccine guidance for employers

The Department of Health has provided some guidance to employers on implementing occupational vaccination programs for people at occupational risk.

This might include healthcare workers, childcare workers, laboratory workers or people who work with animals.

The Department of Health has recommended that if workers have a “significant occupational risk of acquiring a vaccine-preventable disease” the employer should implement a comprehensive occupational vaccination program, which might include:

• A vaccination policy;
• Current staff vaccination records;
• Information about relevant vaccine-preventable diseases; and
• A policy for managing vaccine refusal.

The Department of Health also recommends that employers should take “all reasonable steps to encourage non-immune workers to receive the recommended vaccines”. 

The Victorian Department of Health and Human Services provides similar guidance to employers, particularly for people working with children. It recommends that employers:

• Develop a staff vaccination policy that states the vaccination requirements;
• Take all reasonable steps to encourage nonimmune staff to be vaccinated;
• Document any refusal to comply with vaccination requests; and
• Exclude staff from the workplace who are not vaccinated in the event of an outbreak.

While the issue of mandatory workplace vaccinations is still far from clear, it would appear that employers in the healthcare and childcare sector have a particularly compelling basis to direct employees to be vaccinated, which has been recognised and legislated by some state governments. 

In sectors where the occupational risk of acquiring a vaccine-preventable disease is not significant, employers should consider whether a request to be vaccinated is reasonable and necessary in all the circumstances.

If not, employers should assess each situation on a case-by-case basis, consider reasonable alternatives such as free vaccinations and redeployment opportunities for concerned employees and await further guidance from the federal government once a COVID-19 vaccine is available. 

Disclaimer: This article should not be construed as legal advice and is not intended as such. If readers wish to obtain advice about anything contained in this article, they should speak with a lawyer and discuss their individual circumstances.