Prime Minister Scott Morrison last month declared that the states have agreed it would not be unlawful to work in aged care without being vaccinated stating that “they’re not recommending that that be the case” but “that doesn’t mean that that mightn’t be a position in the future”. It is apparent from these statements that the government intends to leave it to employers to sort through the hot mess of whether employers can enforce a ‘no jab, no job’ policy.
Can an employer direct an employee to get the coronavirus vaccine and if the employee refuses, can their employment be terminated?
The Fair Work Commission has already recently considered an employer’s mandatory vaccination policy in relation to the influenza vaccine where a child care worker was dismissed because she did not comply with a direction to be vaccinated and she did not have a medical condition or medical grounds to refuse the vaccination[1]. The test appears to be whether in the context of an employer’s operation, the direction to employees to get vaccinated is lawful and reasonable and further whether the policy is necessary for the employer to discharge its duty of care with respect to persons in its care.
A refusal to follow a lawful and reasonable direction can amount to a valid reason for termination. However, if the direction is not reasonable, then employers open themselves up to an unfair dismissal claim.
What is reasonable will depend on the circumstances. What is reasonable in an aged care, hospital or child-care setting will be different to what is reasonable in an office or on a building and construction site.
The issue is an issue of health and safety. A direction to be vaccinated is more likely to be lawful and reasonable for businesses that are considered ‘high risk’ or susceptible to an infection outbreak. This would include places of employment such as hospitals, nursing homes, schools and child-care centres where the children are too young to be vaccinated themselves and rely on ‘herd immunity’.
Employers considering implementing a ‘no jab, no job’ policy should consider whether the policy is necessary for employees to comply with the inherent requirements of the job (for instance, to care for children, the elderly or the sick) and if an employee does refuse to be vaccinated, can reasonable adjustments be made to accommodate the employee’s refusal (for instance face masks and social distancing) and whether medical grounds will form an exception to the policy.
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[1] Arnold v Goodstart Early Learning (U2020/11961) 18 November 2020
