Com­pul­so­ry Vac­ci­na­tions for Employ­ees: The Legal Position

In the midst of the COVID-19 pan­dem­ic, and the race to cre­ate a safe, effec­tive vac­cine for the virus, the issue of vac­ci­na­tion is firm­ly on the agen­da. For instance, the CEO of Qan­tas, Alan Joyce, has recent­ly caused con­tro­ver­sy by sug­gest­ing that pas­sen­gers on Qan­tas inter­na­tion­al flights might need to be vac­ci­nat­ed as a con­di­tion of boarding. 

The Arnold Case 

In the employ­ment sphere, a recent unfair dis­missal case, Ms Nicole Maree Arnold v Good­start Ear­ly Learn­ing Lim­it­ed T/A Good­start Ear­ly Learn­ing [2020] FWC 6083 (Arnold Case), briefly con­sid­ered whether an employ­er (a child­care cen­tre) could give a law­ful and rea­son­able” direc­tion to its employ­ees to receive a flu vaccination. 

The issue was only briefly con­sid­ered because the unfair dis­missal appli­ca­tion was dis­missed by the pre­sid­ing mem­ber of the Fair Work Com­mis­sion, Deputy Pres­i­dent Asbury, as being out of time. One of the fac­tors con­sid­ered in deter­min­ing the unsuc­cess­ful appli­ca­tion for an exten­sion of time was the mer­its of the case. The delib­er­a­tion of the appli­ca­tion there­fore includ­ed a high-lev­el con­sid­er­a­tion of the rel­e­vant prin­ci­ples and argu­ments relat­ing to manda­to­ry employ­er vac­ci­na­tion, offer­ing an insight into the way oth­er cas­es will pos­si­bly be deter­mined, rather than rep­re­sent­ing a defin­i­tive finding. 

Turn­ing to the facts of the case, the employ­er, Good­start Ear­ly Learn­ing, issued a direc­tion to its staff that they need­ed to have a flu vac­ci­na­tion by 29 May 2020. The Appli­cant refused to be vac­ci­nat­ed, result­ing in the ter­mi­na­tion of her employ­ment. This refusal was not on med­ical grounds. 

In dis­put­ing the direc­tion the Appli­cant sent var­i­ous cor­re­spon­dence to the employ­er, includ­ing the following:

I am Nicole Maree Arnold, in that I am Nicole-Maree of the blood of the House of Arnold, rely­ing upon the King James Ver­sion of the Holy Bible, Romans chap­ter 2 verse 11, which states: For there is no par­tial­i­ty with God. I am not the Gov­ern­ment cre­at­ed enti­ty or per­son, nor am I, a ward of the State. The Book of James Chap­ter 5 Verse 12 clear­ly states; But above all my brethren, do not swear, either by heav­en or by earth or with any oth­er oath let your Yay be Yay and your Nay be Nay”. There­fore I shall not be com­pelled to swear oaths, my word is my bond.

I am a woman, I am a non-com­bat­ant, non-bel­liger­ent civil­ian. I hold no title or Mil­i­tary Rank, includ­ing but not lim­it­ed to: Miss, Ms or Mrs.”

Her sub­mis­sions to the employ­er were also described in para­graph 19 of the judg­ment as follows:

In jus­ti­fi­ca­tion of her non-con­sent to being vac­ci­nat­ed, or to being com­pelled to vac­ci­nate, the Appli­cant cit­ed: The Forced Labour Con­ven­tion, 1930, No. 29, Arti­cle 2; the Nurem­berg Prin­ci­ples No III and IV being a Con­ven­tion which Aus­tralia has Signed and Rat­i­fied; and/​or the Com­mon­wealth of Aus­tralia Con­sti­tu­tion Act 1901, Com­mon­wealth, Sec­tion 51, XXI­I­IA. The Appli­cant also cit­ed the Uni­ver­sal Dec­la­ra­tion of Human Rights, High Court judge­ments, arti­cles found in med­ical jour­nals and def­i­n­i­tions drawn from a range of dic­tio­nar­ies and oth­er sources in sup­port of her position.”

While, as not­ed above, the judg­ment relat­ed to an appli­ca­tion for exten­sion of time and, as such, did not address mer­it in com­pre­hen­sive detail, it was nev­er­the­less con­sid­ered by the Commission. 

At para­graph 30 of the judgment:

The Applicant’s sub­mis­sion address mer­it in some detail. A major fea­ture of those sub­mis­sions is the propo­si­tion that rea­son­able adjust­ments should have been made to accom­mo­date the Applicant’s refusal to be vac­ci­nat­ed. It is strong­ly arguable that the case law cit­ed in the Applicant’s sub­mis­sions is irrel­e­vant to the present case, on the basis that it deals with accom­mo­da­tion in rela­tion to inca­pac­i­ty based on men­tal or phys­i­cal dis­abil­i­ty. In the present case the Appli­cant did not refuse to be vac­ci­nat­ed for any appar­ent med­ical rea­son. It is also the case that the Respondent’s pol­i­cy in rela­tion to manda­to­ry vac­ci­na­tion pro­vides for a process where­by employ­ees who have med­ical grounds for refus­ing to be vac­ci­nat­ed can seek accom­mo­da­tion in rela­tion to their cir­cum­stances. The Appli­cant does not appear to have availed her­self of this process as part of her refusal to con­sent to vac­ci­na­tion and it is arguable that she can­not claim that rea­son­able accom­mo­da­tion should have been made when she did not seek such accom­mo­da­tion on rea­son­able grounds.”

Deputy Pres­i­dent Asbury offered some inter­est­ing obser­va­tions in rela­tion to an employ­er’s right to man­date vac­ci­na­tion in this sit­u­a­tion (at para­graph 32):

While I do not go so far as to say that the Applicant’s case lacks mer­it, it is my view that it is at least equal­ly arguable that the Respondent’s pol­i­cy requir­ing manda­to­ry vac­ci­na­tion is law­ful and rea­son­able in the con­text of its oper­a­tions which prin­ci­pal­ly involve the care of chil­dren, includ­ing chil­dren who are too young to be vac­ci­nat­ed or unable to be vac­ci­nat­ed for a valid health rea­son. Pri­ma facie the Respondent’s pol­i­cy is nec­es­sary to ensure that it meets its duty of care with respect to the chil­dren in its care, while bal­anc­ing the needs of its employ­ees who may have rea­son­able grounds to refuse to be vac­ci­nat­ed involv­ing the cir­cum­stances of their health and/​or med­ical con­di­tions. It is also equal­ly arguable that the Appli­cant has unrea­son­ably refused to com­ply with a law­ful and rea­son­able direc­tion which is nec­es­sary for her to com­ply with the inher­ent require­ments of her posi­tion, which involves the pro­vi­sion of care to young chil­dren and infants.”

Manda­to­ry COVID-19 Vac­ci­na­tion for Employees?

When a COVID-19 vac­cine becomes avail­able, will employ­ers be able to man­date that their employ­ees be vaccinated?

The answer to this ques­tion will (as always) depend on the cir­cum­stances of the case and whether, in those cir­cum­stances, the direc­tion from the employ­er to the employ­ee to be vac­ci­nat­ed for COVID-19 is law­ful and reasonable’.

A direc­tion to an employ­ee to be vac­ci­nat­ed is not to be made light­ly. Vac­ci­na­tion is a phys­i­cal­ly inva­sive pro­ce­dure. It is anal­o­gous to a direc­tion that an employ­ee sub­ject them­selves to cer­tain forms of drug test­ing, such as urine, sali­va or blood test­ing, that can be sim­i­lar­ly inva­sive. As well as its inva­sive aspect, vac­ci­na­tion also involves the injec­tion of a sub­stance into the body. 

As such, if an employ­er is to man­date that employ­ees be vac­ci­nat­ed for COVID-19, they need to jus­ti­fy the direc­tion. The employ­er will need to show that the vac­ci­na­tion is nec­es­sary for the employ­ee to per­form the inher­ent duties of their posi­tion safely. 

In ordi­nary times, for many posi­tions this would be a dif­fi­cult, if not insu­per­a­ble, hur­dle for employ­ers to jump. For exam­ple, while there are some sit­u­a­tions (pri­mar­i­ly in a med­ical or care con­text) where a direc­tion for an employ­ee to have a flu vac­ci­na­tion will be law­ful and rea­son­able, in most sit­u­a­tions it could not be justified.

Giv­en how infec­tious COVID-19 is, and its often per­ni­cious impact on those afflict­ed, it is like­ly that a wide range of employ­ers will be able to man­date COVID-19 vac­ci­na­tions for staff, sub­ject to gen­uine medical/​health exemp­tions. (In such cas­es, employ­ers will need to con­sid­er whether rea­son­able adjust­ments can be made. Ulti­mate­ly, how­ev­er, it is pos­si­ble some employ­ees might not be able to per­form the inher­ent require­ments of their posi­tion safe­ly due to an inabil­i­ty to be vac­ci­nat­ed for COVID-19.)

Some of the argu­ments employ­ers might cite in sup­port of a direc­tion for employ­ees to be vac­ci­nat­ed for COVID-19 include:

  • It is an impor­tant mea­sure in cre­at­ing a COVID-19 safe’ work envi­ron­ment (just like direc­tions relat­ing to masks, social dis­tanc­ing and sanitising);
  • It pro­vides pro­tec­tion against staff mem­bers infect­ing each oth­er and instils con­fi­dence among staff that the risk of infec­tion from anoth­er employ­ee is being active­ly min­imised; and
  • It pro­vides pro­tec­tion against vis­i­tors to the work­place (includ­ing customers/​clients, sup­pli­ers and exter­nal ser­vice providers) being put at risk from infection.

While much atten­tion has been giv­en to whether the Fed­er­al Gov­ern­ment might seek to man­date COVID-19 vac­ci­na­tions, and the prospect of Qan­tas demand­ing it for inter­na­tion­al pas­sen­gers, the prospect of employ­ers pos­si­bly man­dat­ing such vac­ci­na­tions has been large­ly overlooked. 

To be clear: it is not about employ­ers act­ing as role mod­els’, good cor­po­rate cit­i­zens’ or under­tak­ing a broad­er com­mu­ni­ty ser­vice. It boils down to an analy­sis of whether the employ­er, hav­ing regard to the nature of its busi­ness and the duties of its employ­ees, is jus­ti­fied, on gen­uine safe­ty grounds, issu­ing (and enforc­ing) such a direction. 

Ulti­mate­ly, the issue of work­place safe­ty is far more like­ly to be rel­e­vant in deter­min­ing whether an employ­er has a right to man­date COVID-19 vac­ci­na­tion for employ­ees than more eso­teric human rights prin­ci­ples. It is unlike­ly argu­ments against an employ­er direc­tion to be vac­ci­nat­ed based on grandiose con­cepts such as the Aus­tralian Con­sti­tu­tion, inter­na­tion­al con­ven­tions or the Magna Car­ta (which always seems to get a run) will find favour. 

While employ­ers will need to care­ful­ly con­sid­er how employ­ees with med­ical or health issues pre­vent­ing vac­ci­na­tion will be treat­ed, employ­ees who have con­sci­en­tious objec­tions to vac­ci­na­tions or are part of the anti-vax’ move­ment, and who refuse to be vac­ci­nat­ed on that basis alone, might find them­selves choos­ing between their beliefs and con­tin­ued employment. 

It is not­ed, at time of writ­ing, there are var­i­ous flu vac­ci­na­tion cas­es on foot before the Fair Work Com­mis­sion. If they pro­ceed to judg­ment it will be inter­est­ing to see what impact they have on the rights of employ­ers and employ­ees in this chal­leng­ing but inter­est­ing area.