COVID-19 VACCINE UPDATE: Lawful and Reasonable Direction 

We have previously written about an employer’s ability at common law to terminate the employment of an employee who fails to abide by its lawful and reasonable directions. This BLP Brief can be accessed here. It was written at the time when Australia’s COVID-19 vaccine rollout began and specifically addressed the novel question of whether staff can be forced to have the COVID-19 vaccination. It was considered that, in the absence of case law or legislative intervention, it unlikely that employers will have unfettered right to require their employees to be vaccinated against COVID-19.

Recent decision of the Fair Work Commission

A very recent decision of the Fair Work Commission has provided the clearest indication yet that it may soon be lawful for an employer to compel their employees to get vaccinated against COVID-19.

In this case, a childcare provider introduced a policy in April 2020 requiring all of its staff to get the flu vaccination. One staff member refused (on ultimately unproven medical grounds) and her employment was terminated. It was held that directing an employee to have the influenza vaccine was a lawful and reasonable direction and the employee’s failure to follow that direction by getting the flu vaccination provided grounds for termination of her employment contract.

The mandating of a vaccine in this situation was found to be reasonable for multiple reasons, including a child’s high risk of contracting influenza, the inability to avoid close contact between children and/or staff in such settings, and the inability of some to have a vaccine because of their age. It was concluded that the childcare industry is highly regulated, and it was logical and necessary to require vaccines to ensure the safety of vulnerable children and staff.

This decision is the first of its kind and may open the door for employers to mandate COVID-19 vaccinations, at least those with vulnerable workforces because the rationale of the Fair Work Commission would be equally applicable to other high-risk industries such as aged care. Again, employers must be cautious about mandating a COVID-19 vaccine in the current climate. The decision of the Fair Work Commission is the first of its kind, is still the subject of possible legal appeal, and very much dependent upon the particular facts (the decision relates specifically to the influenza vaccination in a childcare environment). At least for now, it remains unlikely that employers will have this ability in all industries.

In recent times both Safe Work Australia and the Fair Work Ombudsman have released guidance to the effect that employers do not need to order their employees to be vaccinated and warning that they may not legally be able to. As such, it remains uncertain whether it will be lawful and reasonable for all employers in all workplaces to compel their employers to get the COVID-19 vaccine.