Can my employer make me get vaccinated?

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The question is a complicated one, and the answer even more so.

The Current State of Play

Firstly, the Federal Government has not mandated compulsory vaccinations. While there is potential scope for such a mandate (e.g. pursuant to the Biosecurity Act 2015 (Cth)) the Feds have not public entertained the idea of making vaccination compulsory pursuant to existing legislation or introducing a new law requiring same.

Similarly, there does not appear to be any current NSW legislation that expressly dictates whether or not an employer can require an employee to get vaccinated and whether refusal to do so would be grounds for dismissal. Some states have public health orders laws that impart an explicit right on the state to require vaccinations in certain circumstances (e.g. Victoria and WA) but the NSW law is less prescriptive.

The NSW State Government has however made clear that its position is that the only way out of lockdown is mass vaccination, earlier this week taking the unprecedented step of requiring construction workers to be vaccinated if they want to be able to work in and around Covid hotspots in South-West and Western Sydney.

What does employment law tell us?

In the absence of specific legislation on the matter, one must look to employment law for guidance.

In New South Wales, employers have a general obligation pursuant to work health and safety legislation to provide and maintain a work environment that is without risk to health and safety and to monitor the health of workers and the conditions of a workplace for the purpose of preventing illness or injury.

This obligation, of course, extends to Covid-19 and is generally limited to actions that are “reasonably practicable” i.e. reasonably able to be done in all of the circumstances.

Until now this duty encapsulated things like employers facilitating “work from home” arrangements where possible, requiring workers to practice social distancing in the workplace and facilitating good hygiene by providing sanitiser or hand washing stations – but could this duty extend to ensuring all workers in a workplace are vaccinated for not only their own safety, but the safety of everyone else?

Employees also have a role to play of course. At law, an employee must comply with the “reasonable and lawful” instructions of their employer when it comes to workplace health and safety. This includes things like complying with relevant health and safety procedures and wearing personal protective equipment such as face masks if directed to do so.

Until recently, due to the lethargic nature of the national vaccine rollout, such a direction would have been neither “reasonably practicable” or “reasonable and lawful” due to a lack of supply of vaccines. As vaccines become more readily available however, a stronger argument emerges supporting an employer’s right to require employees to be vaccinated in the following context:

• lockdowns are crippling businesses and the economy generally and the NSW Government has made clear the only way out is mass vaccination;

• the current vaccines available to workers are all approved by ATAGI and ongoing advice continues to be that they are safe with very low risk of adverse side effects;

• compulsory vaccinations in the workplace are not a new thing – industries like childcare have required employees to be vaccinated against things like rubella and whooping cough for a long time – and there is legislation in place that supports same;

• given the extremely high transmissibility of the virus unvaccinated employees arguably represent a risk to their colleagues;

• there is legal precedent to support compulsory vaccinations, which we discuss below.

The challenge in determining the question is that what is considered “reasonably practicable” and/or “lawful and reasonable” depends on the facts of each individual case.

For example, if an employee works alone, remotely from their home and has little to no exposure to any other staff or customers it would be far less reasonable to require them to be vaccinated than a staff member who, for example, works at the checkout of a busy supermarket.

Can I be sacked for refusing to get vaccinated?

If we assume that an employer can, in certain circumstances, require employees to be vaccinated – is refusal to do so grounds for an employee to be dismissed?

Given how new the Covid-19 pandemic is we don’t have any Covid-specific case law to look to for direction – YET.

We can, however, look to similar past cases for guidance, such as those in which employees have refused the direction of an employer to get the flu vaccine. But for the fact that the Covid-19 pandemic is clearly far more serious than the seasonal flu, there is no reason such cases are not comparable in that both deal with an employer direction to be vaccinated against a highly transmissible illness.

Earlier this year, the Fair Work Commission (FWC) found that an employee who was terminated from her employment for refusing to get a flu vaccine was not unfairly dismissed (Ms Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156).

The employee worked at a national childcare centre which introduced a policy in mid-2020 mandating that all staff needed to be vaccinated against the flu unless they had a medical exemption indicating that it was unsafe for them to do so.

The relevant employee objected, offering up what the FWC described as “vague certificates” which referenced certain medical conditions but offered “nothing substantive” supporting the proposition that she should be medically exempted from the employer’s flu vaccine requirement.

The FWC ultimately found that the employer’s direction for its staff to be vaccinated against the flu was reasonable and lawful.

It is important to note that in making this determination the FWC noted a number of specific, arguably unique factors present in that case.

Firstly, the childcare industry is already highly regulated with targeted legislation aimed at children’s safety.

In addition, the FWC also noted that a requirement for employees to be vaccinated in the industry was not uncommon, given that staff were already required to be vaccinated against things like whooping cough and measles to qualify the employer for Government childcare subsidies.

Two further compulsory flu vaccination cases followed the childcare centre case in early 2021, namely the matters of Maria Corazon Glover v Ozcare [2021] FWC 2989 and Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818.

The matters of Glover and Kimber both concerned aged care workers who refused the direction of their employers to get flu vaccinations following public health orders in each of QLD and NSW requiring same. Glover argued that she’d had an anaphylactic reaction to a flu vaccine when she was a child and should therefore be exempted from the vaccination requirement. Kimber claimed she’d suffered an allergic reaction to a past flu vaccine in the form of a skin condition.

In both matters the FWC found that the respective dismissals were neither unfair, nor harsh, unjust or unreasonable. In Glover’s case, the FWC found that the employer had a “lawful and reasonable” basis to mandate the vaccination of all client-facing employees. Kimber’s case failed for similar reasons, with the FWC also citing a lack of convincing medical evidence of her apparent adverse reactions to flu vaccines.

These cases dealt specifically with industries that have a high level of face-to-face contact with vulnerable members of society i.e. children and the elderly. There is scope, however, for a similar framework to be applied with respect to Covid vaccination cases not just in these industries, but others with high levels of client/customer interaction such as medical and allied health professionals and businesses with large amounts of employees working in close proximity with each other like distribution centres.

What is clear is that employers should carefully consider the specific operational contexts of their businesses in determining whether or not to implement a compulsory vaccination policy.

Valid reasons for refusal

An employee’s individual circumstances are also relevant in determining whether such a direction will be considered lawful and reasonable and/or whether an employee who refuses to be vaccinated can be lawfully dismissed. Certainly, medical grounds are a reason why an employee might be able to lawfully refuse to be get vaccinated (see cases above, robust medical evidence is likely required, not just your own opinion), and there is also scope for refusal on things like religious or cultural grounds.

Local MP Tanya Davies (Member for Mulgoa) is currently on a warpath with the Premier following the Government’s move to make vaccinations compulsory for constructions workers in parts of Western Sydney. Davies says that “no person should lose their job if they do not get vaccinated. A person may not be vaccinated for any number of medical, ethical, or religious reasons”.

In calling for support for her private member’s bill to ban blanket mandates requiring Covid-19 vaccinations she said “Workers in Western Sydney are being forced into vaccinations for fear of not being able to provide for their families. This is an assault on individuals’ freedoms and civil liberties.”

There is a palpable irony to the MPs comments about freedom and liberty in circumstances where the entire eastern seaboard has been in some form of lockdown in the past 18 months due to the ferocity of the pandemic – especially in circumstances where most experts (including governments from each side of the aisle) agree that the road to resuming normal life is mass vaccinations. Lots of constituents in Mulgoa and beyond are however proponents of the same school of thought, namely that their right to choose is paramount to other considerations.

Victoria based fruit and vegetable company SPC is taking matters out of the hands of employees however, announcing this week that it would make it mandatory for all workers to be vaccinated against Covid-19 prompting an angry response from a number of staff who think it should be their choice whether or not they get the jab.

SPC announced that employees would need to be vaccinated by November if they wish to continue to work.

The Australian Meat Industry Employees Union have already come out swinging labelling SPC’s decision “a step too far”.

The Australian Manufacturing Workers Union which also represents a number of SPC workers have also criticised the move.

Other companies and lawyers alike will be closely monitoring the fallout from SPC’s decision with many companies likely to follow suit as time goes on.

What if something goes wrong?

If my employer requires me to get vaccinated, and is lawfully able to do so, who is liable if something goes wrong?

While the overwhelming majority of scientific opinion on the matter says that vaccines are safe and adverse side effects are rare – there are exceptions to the rule. Some people react poorly to vaccines and there is data to support that in some instances, albeit a minute number, people can die from complications associated with taking a Covid-19 vaccine.

We spoke to compensation and personal injury law expert Gerard Morson of Turner Freeman Lawyers who had this to say in relation to the current state of the law: “Employers have a legal and fiduciary duty to their staff to act in their best interests. During the Covid-19 pandemic that would include encouraging them to be vaccinated, to not only protect themselves, but their work colleagues and customers or clients they interact with to prevent against infection. If there is a rare adverse reaction from the vaccine which causes injury or death, it would need to be proven that the particular person’s employment was the cause or main contributing factor to that injury or death pursuant to sections 4, 9 and 9A of the Workers Compensation Act 1987. If such a circumstance was to arise the Employer’s Workers Compensation Insurer would likely indemnify the employer against any potential claim.”

So, provided that an employer is appropriately insured, an adverse reaction to a compulsorily administered vaccine would likely be treated like any other workplace injury.

On this particular point, there is currently before the NSW parliament proposed legislation that would see liability fall squarely on the shoulders of the employer without question.

The Public Health Amendment (Vaccination Compensation) Bill 2021 is a private member’s bill introduced to parliament in February 2021. In a succinct Second Reading Speech, the relevant member set out that the proposed legislation seeks to impose “liability on the part of a relevant body that makes it necessary for a worker to take a vaccination if that worker wishes to retain or gain employment…[and that] the relevant body is to pay compensation to the worker in the event that the vaccine that the worker has been forced to take results in “injury, loss or damage” to that worker.”

Again, the proposed legislation is a private member’s bill not currently publicly supported by either the Government or the Opposition. The Bill is yet to be debated at any great length and whether or not it, or some variation thereof, becomes law remains to be seen. There does appear to be protection at law however for employees’ whose employers require them to get vaccinated who suffer an adverse reaction thereto.

The Federal Government is also currently devising an indemnity scheme to protect GPs who administer vaccines against compensation claims. The scheme, which is yet to be finalised, is will likely enable successful compensation claims against GPs by persons adversely affected by the taking of a Covid-19 vaccine to be funded by the Government.

In conclusion

The biggest challenge in answering this question is the lack of legislation or Covid-specific case law to guide us. The matter has not yet been tested in the courts and therefore we don’t yet have the benefit of hindsight.

It would appear that there is no general legal impediment to an employer requiring an employee to get vaccinated against Covid-19.

It is also evident that in considering such a question a court is likely to consider the individual circumstances of each case as opposed to imposing a blanket rule that covers every scenario. Pertinent factors would probably include things like the type of work an employee does and their level of exposure to customers, clients and their co-workers, the profile of said customers, clients and co-workers (e.g. are they vulnerable persons like children or the elderly) and the state-of-play with respect to the pandemic at the relevant time.

The Fair Work Commission has indicated in its recent findings that employers can require vaccinations where necessary to provide a healthy and safe workplace. No doubt the Commission will be asked to consider this question in the context of Covid-19 specifically soon enough.

Until then, we hope all of our clients and referrers are staying safe during lockdown. As always, we will keep you updated as the law progresses.

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