Can I make my staff get a COVID vaccine?

You’ve done everything you can reasonably do to keep staff safe from COVID-19.

Now the vaccine has arrived, but one of your employees refuses the jab. So what can you do to ensure your staff embrace the vaccine? Probably not very much.

CCIWA explores the issue.

COVID-19 vaccines are rolling out across Australia.

Legality

There is currently no Federal Government mandate for COVID-19 vaccines to be compulsory, and State legislation is patchy.

WA is among the States with a public health order in place that requires workers in residential aged care to be vaccinated against influenza where a vaccine is available, unless an employee has a medical condition that would cause them harm if they were vaccinated.

The question of whether COVID-19 vaccinations should be a condition of employment has not yet been tested in a court or tribunal, meaning there is no case law to guide employers.

Victoria is so far the only State to legislate mandatory vaccination for certain workers against “specified diseases” via its Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020.

The Act requires all workers employed or engaged in public hospitals, denominational hospitals and health service establishments to be vaccinated against specified diseases.

Is it reasonable?

However, workers are required to comply with reasonable and lawful directions from their employer. Such directions could apply to the health and safety of employees and customers.

For example, some workplaces require their staff to meet certain medical and fitness standards needed to do their job.

Requiring your staff to stay home if unwell, get a COVID-19 test or to self-isolate are classified as reasonable directions.

Safe Work Australia advises that while you can encourage your workers to get a COVID-19 jab, it is unlikely that requiring all workers to be vaccinated will be reasonably practicable at this point.

This is because:

  • Public health experts including the Australian Health Protection Principal Committee have not yet recommended a vaccine be mandatory in any industries;
  • a vaccine may not yet be available for your workers;
  • your workplace may be considered ‘low risk’ – e.g. in a location with no community transmission.
  • Some of your workers have medical reasons why they cannot be vaccinated.

Workplaces in industries considered high risk such as childcare, aged care and health may consider implementing policies that require their workers to be vaccinated against COVID-19.

Employers must carefully consider such policies and seek advice if they are looking to go down this road however, and it is key they comply with any public health orders in place.

For guidance, contact CCIWA Employee Relations Advice Centre on 9365 7660 or advice@cciwa.com.

Case study 1

As a recent Fair Work Commission (FWC) ruling found, whether employers can make their staff get a vaccine comes down to balancing an employer’s duty of care with the needs of employees.

The ruling involved a Brisbane unfair dismissal claim from childcare worker Nicole Arnold and her employer Goodstart Early Learning in November 2020.

Arnold refused to get a flu vaccination, despite Goodstart making it a being a condition of her employment in April 2020, citing her belief systems.

The FWC dismissed Arnold’s case on the grounds that Goodstart’s vaccination policy was “lawful and reasonable in the context of its operations”.

Commissioner Ingrid Asbury said the childcare provider’s service “principally involve the care of children who are too young to be vaccinated or unable to be vaccinated for a valid health reason.

Case study 2

In October 2020, in-home aged care worker Maria Glover lodged an unfair dismissal claim to the FWC, after her employer Ozcare stopped rostering her to work.

Ozcare introduced a mandatory influenza vaccination program for its workers in April 2020, requiring workers to provide supporting evidence for a medical exemption if they refused a vaccine.

Prior to this, it was providing free flu vaccinations to its employees annually.

Glover, who had worked at Ozcare since 2009, refused to partake in her employers annual vaccination program on the grounds that she had an adverse reaction to a flu shot as a child.

When Glover declined to be vaccinated in 2020, her employer no longer rostered her for work. She told the FWC her dismissal was “harsh, unjust or unreasonable”.

The case is yet to be finalized by the FWC, as Ozcare’s lawyers argued that Glover was not dismissed.

What could the future hold? 

In a preliminary ruling in Glover v Ozcare, Commissioner Jennifer Hunt considered a future scenario where men dressed as Santa Clause could be made to be vaccinated against COVID-19.

“It is not inconceivable that come November 2021, employers of men engaged to play the role of Santa Clause in shopping centres, having photos taken around young children, may be required by their employer to be vaccinated at least against influenza, and if a vaccination for COVID-19 is available, that too,” she said.

“The employer in those scenarios, where they are not mandated to provide social distancing, may decide at their election that vaccinations of their employees are now an inherent requirement of the job.

“It may be that a court or tribunal is tasked with determining whether the employer’s direction is lawful and reasonable, however in the court of public opinion, it may not be an unreasonable requirement. It may, in fact, be an expectation of a large proportion of the community.”

You’ve done everything you can reasonably do to keep staff safe from COVID-19.

Now the vaccine has arrived, but one of your employees refuses the jab. So what can you do to ensure your staff embrace the vaccine? Probably not very much.

CCIWA explores the issue.

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