Is it lawful to mandate influenza vaccinations in the workplace?
Vaccinations, particularly in relation to the various COVID-19 vaccines that are being administered in Australia, have been a hot topic in recent months. One question that especially seems to arise in public discourse on the topic is whether employees can be directed by their employer to obtain a vaccination against COVID-19.
Recently, the Fair Work Commission (the Commission) has upheld an employer direction making influenza vaccines for its employees mandatory as being lawful and reasonable. Accordingly, it decided that the dismissal of an employee for failing to receive an influenza vaccination, without a legitimate medical reason justifying this failure, was not unfair for the purposes of section 385 of the Fair Work Act 2009 (Cth) (FW Act). Whilst Deputy President Lake, in his decision in Ms Bou-Jamie Barber v Goodstart Early Learning  FWC 2156, made a point of emphasising that this decision was made by reference to the specific facts and circumstances that surrounded it, its principles may nonetheless shed light on the issue if a similar case were to arise regarding the COVID-19 vaccine.
Goodstart Early Learning (Goodstart) is a national not-for-profit organisation providing childcare and early learning services. Ms Barber had been employed by Goodstart in various roles since December 2006. At the time of her dismissal, she was employed as a Lead Educator in one of Goodstart’s Queensland childcare centres.
In April 2020, in response to the COVID-19 pandemic, Goodstart decided to introduce a mandatory requirement for all its staff to be vaccinated against the influenza virus by the end of May 2020, unless they had a valid medical reason not to do so. In August 2020, after failing to obtain an influenza vaccination, or provide acceptable medical evidence as to why she should be exempt from such vaccination, Ms Barber’s employment was terminated.
Ms Barber did not obtain an influenza vaccination as she objected to receiving it on medical grounds. She claimed to have a “sensitive” gut and immune system as well as a history of auto immune disease and coeliac disease which she continues to struggle with symptoms of. She also reported that approximately 11 years ago she suffered an allergic reaction to an influenza vaccination. Accordingly, Ms Barber was unwilling to receive any further vaccination for influenza, as she felt that it would be unsafe for her to do so. Consequently, Ms Barber made an application for an unfair dismissal remedy pursuant to section 394 of the FW Act.
Importantly though, whilst Ms Barber was able to provide Goodstart with medical certificates regarding her coeliac disease and that she had reported having a bad reaction to the flu vaccine in the past, she was unable to obtain a medical certificate that explicitly stated that she had a medical contraindication (i.e. a condition to not undertake certain medical treatment that may cause harm to a patient) to the influenza vaccine.
Following a thorough analysis of the evidence led and submissions made by both Ms Barber and Goodstart, the Commission concluded that Goodstart’s direction to employees mandating they be vaccinated against influenza was a lawful and reasonable direction. Consequently, the Commission held that there was a valid reason to terminate Ms Barber’s employment when she failed to obtain that vaccination without making out a valid medical exemption not to receive it. Accordingly, her dismissal was not harsh, unjust or unreasonable and therefore not unfair.
Of particular influence in reaching the conclusion that the direction was reasonable was a consideration of the context within which Goodstart centres operate and Ms Barber’s role as an Educator. The Commission identified that Goodstart, and Ms Barber as an Educator, is entrusted with the care of children, a vulnerable and developing group within our society who are unable to properly care for themselves. In deciding to adopt a policy of mandatory influenza vaccination, the Commission held that Goodstart was taking an action they believed necessary to uphold their obligations to care for these children and that would be most effective in preventing the spread of disease between the children, their families and staff.
The Commission also accepted evidence that Goodstart had considered other measures to prevent the spread of influenza virus, such as social distancing and the use of Personal Protective Equipment for staff but decided that such measures would be impractical to implement in the childcare environment. Staff are required to maintain close physical proximity with children and show a level of care and affection towards them, this is not possible to perform with social distancing measures in place. The Commission also gave weight to evidence that during the height of the pandemic children were scared by staff wearing masks and that the policy had been implemented to protect infants under the age of 6 months especially, as they are most vulnerable to influenza virus and cannot be vaccinated against it.
The Commission also held that the direction was lawful as it fell within the scope of Ms Barber’s employment and was not otherwise illegal.
Importantly, in relation to the employer’s mandatory influenza vaccination direction, the Commission did not find that vaccination against influenza could comprise an inherent requirement of Ms Barber’s role. The Commission held that vaccination could not be made an inherent requirement of the role of an Educator as whether an Educator was vaccinated against influenza did not impact how the Educator performs their role or whether they had the personal capacity to perform the tasks that make up that role. In reaching this conclusion, the Commission was influenced by the fact that Goodstart provided a medical exemption to the vaccination requirement, stating that it is “counterintuitive” for Goodstart to be able to provide a blanket exemption to an inherent requirement. It was also influenced by the fact that Ms Barber had successfully performed her role for many years prior to the influenza vaccination being deemed mandatory.
Take Home Messages
Although the Commission frequently stressed that this decision was made considering the context of Ms Barber’s role and the childcare industry, this decision confirms that an employer direction requiring employees to receive an influenza vaccination can be a lawful and reasonable direction. However, any dismissal based on a failure to follow this direction is only fair by virtue of the employee’s misconduct in not being vaccinated without a valid medical exemption and not because they are failing to meet an inherent requirement of their role.
Further, casting our mind to potential similar directions being given to receive the COVID-19 vaccine, whilst any decision would be made by reference to the specific context and circumstances of the workplace, industry and employee’s position, this decision may influence the Commission in similarly upholding that such a direction is lawful and reasonable.
For more specific information on any of the material contained in this article please contact Sathish Dasan on +61 8 8210 1253 or firstname.lastname@example.org, Ganesh Krishnan on +61 8 8217 1395 or email@example.com or Anastasia Gravas on +61 8 8217 1331 or firstname.lastname@example.org.
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