29 Apr 2021

From unvaccinated to unemployed: when will a mandatory vaccination be a reasonable direction?

By Hedy Cray and Jeremy Saba

Any attempt to implement a mandatory vaccination program in the current environment, even an annual flu jab, will likely be subject to a greater scrutiny.

While there are significant differences between voluntary and mandatory programs, in a world challenged by COVID-19 we have seen an increased focus on when a mandatory vaccination program may be allowed. Such questions are also impacting on other vaccinations like the annual flu vaccine.

In the absence of legislative intervention, any mandatory vaccination program will require an analysis of the business environment, how the enterprise is structured,  alternative avenues for risk management and what control measures exist other than to mandate vaccination.

As such implementing a mandatory vaccination program will require consideration of both lawful and reasonable directions but also potentially the inherent requirements of a position.

These matters have been the subject of guidance from the recent Fair Work Commission decision: Barber v Goodstart Early Learning [2021] FWC 2156.

Goodstart implemented a mandatory influenza vaccination policy for all staff; developed and promulgated for the purposes of minimising the risk of influenza in its workplace. The policy contained an exemption basis for mandatory vaccination on medical grounds. Ms Barber sought an exemption on the grounds that she had a sensitive immune system, suffered from coeliac disease, and had allegedly suffered an adverse reaction in the past.

Goodstart required Ms Barber to be vaccinated and sought to rely on two grounds, that it lawfully and reasonably directed that she be vaccinated, but also that in failing to do so Ms Barber could not meet the inherent requirements of her role: to be vaccinated against the flu.

While Goodstart engaged with Ms Barber over a lengthy period, inviting her to provide additional evidence, when considering the medical information provided by her, it was not satisfied that there was a proper basis for an exemption. The medical information, which included medical certificates, did not support a connection between her medical conditions and the grounds of exemption or submission made by Ms Barber for exclusion from the policy.

Similarly, on review of the evidence, the Deputy President found that Ms Barber had failed to produce any substantial documentation over a lengthy four-month period that supported a genuine medical exemption from the policy.

As a result Ms Barber had failed to comply with the lawful and reasonable direction to be vaccinated in accordance with the Goodstart policy, which resulted in the termination of her employment because of the proximity that her position had in frequently engaging with children.

Mandatory vaccination lawful and reasonable

An employer has broad scope in directing employees to perform a task; the requirements at law, are that the direction be both lawful and reasonable. Here the policy and mandatory direction for influenza vaccination was lawful, within the scope of the employment and did not involve any unlawful act.

The critical element to consider, against the child care industry and the policy exemption, was reasonableness. Reasonableness, as the Deputy President summarised, is a question of fact and balance:

"What can be considered reasonable will likely differ for each individual employer. So much is almost certain when considering the unique regulatory obligations and industry practices that an employer can face. This is only compounded by the case law, which provides that it is not the role of the Commission to interfere with the right of an employer to manager their own business. The choice of the employer need not be the most reasonable decision, but simply fall within the realm of reasonableness."

In determining the policy was reasonable, the Deputy President gave weight to various factors, including:

  • Goodstart's health and safety obligations under the Work Health and Safety Act 2011 (Qld), and more specifically in a childcare environment, the Education and Care Services National Law Act 2011 (Qld);
  • Government advice to the industry encouraging vaccination (although not mandating it);
  • that the vaccine was, on the evidence provided, at its worst still 29% effective;
  • Goodstart's primary function of the care of children and the unique risk to certain children whose age prevents vaccination;
  • the relative ineffectiveness of other controls (such as masks, social distancing and strict hygiene) in a childcare environment;
  • that the policy was appropriately adapted, as it allowed for medical exemptions;
  • union consultation and support for the policy; and
  • that staff had an opportunity to reply and the cost of vaccination was covered.

In considering that it was lawful and reasonableness to require Ms Barber to be vaccinated in accordance with the policy, given her role was Educator, working directly with children, the Deputy President stated:

"At the heart of Goodstart’s purpose is rigorous care and education for a vulnerable and still developing group that lack the capacity to care for themselves – children. They are entrusted with the care of over 70,000 children across Australia and are held to extremely high standards in not only nurturing, but also protecting those children.

The childcare industry faces unique organisational challenges which make other controls less effective, or impracticable. I am satisfied that it is reasonable for a childcare provider to mandate flu vaccination for those staff who deal with children on such a regular basis, and in such close proximity."

While Goodstart's direction, consistent with its policy, was lawful and reasonable, it was unable to demonstrate that vaccination was an inherent requirement of Ms Barber's position. As a higher bar, in concluding that the vaccination was not an inherent requirement (an element so essential that the role could not be performed without it), the Deputy President considered that:

  • it is critical for an employer to comply with their statutory obligations, but that where other viable options exist to satisfy the statutory requirements the requirement is less likely to be inherent;
  • Goodstart operates in a unique environment and the nature of their business and how they conduct their enterprise was significant;
  • a medical exemption was available for the vaccination such that satisfactory exemption would detract for it being an inherent requirement as the position could still be performed, albeit potentially with restrictions or other control measures;
  • Ms Barber successfully performed her role for many years, indicating that the "requirement" may be an artificial one.

Application to the COVID-19 vaccination

While the case involved a flu vaccination, the Deputy President warned the decision was relevant within a limited framework, observing the high interest currently surrounding vaccination:

"I note that curiosity surrounding vaccination is at an unnatural high; protection against COVID-19 is becoming a tangible reality for the population and guidance surrounding how this will be administered in the workplace is scarce…

[i]t is beyond the scope of this decision to consider whether the conclusions above extend even as far as the entirety of the Respondent’s business, as the role each employee performs in fulfilling the Respondent’s undertaking may differ. An attempt to extrapolate further and say that mandatory vaccination in different industries could be contemplated on the reasons above would be audacious, if not improvident."

While the circumstances and availability of vaccinations for COVID-19 and influenza differ, the decision provides some guidance on industry considerations and when secondary control measures may not be reasonable practicable. As outlined above any attempt to implement a mandatory policy will require a close analysis of the risk and control measures in the business or industry, and what alternative avenues exist other than to mandate vaccination. They will also require consideration of what is reasonable in the implementation of the policy.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.