COVID-19 vaccines: Employer directions to be ‘lawful and reasonable’

Fair Work ruling sheds light on mandatory vaccination policies

COVID-19 vaccines: Employer directions to be ‘lawful and reasonable’

by Shawn Skyring and Laure Kenworthy, Coleman Greig

Just as we anticipated, the Fair Work Commission (the Commission) is progressively finalising matters that have arisen out of the COVID-19 pandemic. Albeit gradual, we are gaining clarity on the various questions posed by the last 18 months of life, such as when can an employer direct an employee to get vaccinated?

In the recent decision of Maria Corazon Glover v Ozcare [2021] FWC 2989 (26 May 2021), the Commission upheld the sacking of a long-term care assistant after the assistant refused a compulsory flu vaccination on allergy grounds.

The facts

The facts of the matter were that in April 2020, the 64-year-old care assistant received a direction by her employer, Ozcare, to get the flu vaccination. The care assistant refused to get the vaccination on the basis that when she was seven she reacted poorly to a shot and, according to her parents, “could have died”.

In response, Ozcare affirmed that the flu vaccination had become an inherent requirement of the assistant’s role. This accorded with the directions at the time from Queensland Chief Health Officer Dr Jeannette Young, who required all guests to residential aged care facilities have the influenza vaccination. The direction clarified that those with a medical contraindication to that vaccine would be exempt.

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The care assistant provided a medical certificate to Ozcare stating that she could not be vaccinated due to childhood anaphylaxis caused by the flu shot. The medical certificate also indicated that she was not to attend work until after September after the peak period of flu infection had passed.

Ozcare then advised the assistant that she would not be rostered nor allowed to enter Ozcare’s premises for an unspecified period. In respect of return to work, Ozcare indicated that after exhausting paid leave, the assistant would remain on unpaid leave.

The care assistant then claimed that she was unfairly dismissed.

The Commission

The Commissioner determined that the care assistant’s evidence of her childhood allergy to the flu shot was no more than a case of the assistant expressing to her GP that she believed she suffered from a condition.

The Commissioner clarified: “On any plain reading of the Aged Care Direction first issued … until December 2020, it was a lawful requirement to be vaccinated against influenza to enter or remain on the premises of a residential aged care facility unless a vaccination was not available to the person”.

While this direction applied strictly to residential aged care facilities but not to community care or in-home care, being the basis of the care assistant’s argument that it was not reasonable, the Commissioner found that this did not mean that Ozcare’s mandatory vaccination requirement was unlawful.

The Commissioner asserted that Ozcare had not required any employees to be vaccinated against their will, no employees had had the vaccination inflicted upon them, the direction did not breach any ground of discrimination, and the resulting risk of employee termination for failure to comply was not unlawful.

On the question of whether Ozcare’s direction was a reasonable requirement in all the circumstances, the Commissioner accepted that Ozcare’s community-care employees could potentially become super-spreaders of the flu. The direction was considered an appropriate managerial prerogative and necessary step to safeguard clients and employees as far as possible from the risks of the flu.

The Commissioner further remarked: “I do not consider the reason for the dismissal was capricious, fanciful, spiteful or prejudiced”.

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The decision

The Commissioner determined that Ozcare had a valid reason for the dismissal of the care assistant having regard to the care assistant’s capacity and Ozcare’s operational requirements.

Furthermore, the dismissal was not harsh, unjust or unreasonable.

The case was dismissed.

Key Lessons

An employer direction must be lawful and reasonable having regard to all of the circumstances. The ability of an employer to require their employee to have a vaccination is not a sure thing but depends on a range of factors, including but not limited to the sector of work and individual risk factors. An employer who unlawfully or unreasonably mandates a vaccination or takes action against an employee for failure to meet this mandate will place themselves at risk of a claim.

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