Mandating the COVID-19 Vaccine – Fair Work Ombudsman Update
Whether an employer can mandate an employee to receive the COVID-19 vaccine requires considering an array of factors:
- Law – Is there a jurisdiction-specific law in place, such as a public health order?
- Contractual Agreement – Does the employment contract include a lawful (i.e., non-discriminatory) clause mandating the COVID-19 vaccine as a pre-condition of employment?
- Lawful and Reasonable – Notwithstanding factors 1 and 2 above, would it be, upon an individualised assessment of the inherent requirements of the role, a lawful and reasonable direction by an employer?
Law – Public Health Orders
Under the Public Health Act 2005 (QLD), the Health Minister has extended Queensland’s public health emergency to 11:59pm on Monday 27 September 2021. Queensland government has issued fresh public health directions mandating COVID-19 vaccinations for:
- health service employees.
- Queensland Ambulance Service employees.
- hospital and health service contractors.
- Queensland Health employees in residential aged care facilities operated by Queensland Health (first dose by 16 September 2021).
- workers in quarantine facilities.
(“Mandated COVID-19 Vaccine Areas”)
Contractual Agreement
Some employment contracts may contain terms that mandate vaccinations prior to starting employment. Generally speaking, an employment agreement should reflect agreeable terms—save those which are unlawful—between the employer and employee.
The main issue with employment agreements containing terms which mandate (any) vaccination is that such terms may offend anti-discrimination law.
For example, under the Disability Discrimination Act 1992 (Cth), it may be discriminatory to include a term within the contract requiring a prospective employee to receive the COVID-19 vaccine if said term is inconsistent with or adversely affects the prospective employee’s recognised medical condition.
If an employer wishes to require a prospective employee to receive the COVID-19 vaccine prior to employment, it is critical that a proper assessment of the Fair Work Act 2009 (Cth) is conducted.
The more common scenario, as is now being heavily assessed through Australia’s judicial system, is whether an employer’s direction to a current employee to receive the COVID-19 vaccine will in the circumstances be lawful and reasonable.
Lawful and Reasonable Direction
The failure of an employee to follow an employer’s lawful and reasonable direction can (and often will) constitute a valid reason for dismissal. In normal circumstances (that is, a Pre-COVID-19 environment), whether an employer’s direction was lawful and reasonable required consideration of, amongst other things:
- the inherent requirements of the role against relevant work place legislation; and
- consideration of analogous common law decisions.
However, these are not normal circumstances. COVID-19 has a presented a novel issue for the Fair Work Commission, which hand-in-hand requires a novel approach. The Fair Work Commission has this year only considered a handful of employer and employee obligations in the context of the COVID-19 environment (see our previous article by Lawyer, Timothy Flanagan).
The issue that nevertheless remains is that consideration of what is “lawful and reasonable” has, problematically, for the most part only been considered in a pre-COVID-19 environment.
To assist in providing greater clarity in this area, on 13 August 2021, the Fair Work Ombudsman released a four-tier system which broadly classifies the reasonableness of being directed by an employer to receive the COVID-19 vaccine:
Tier 1 work – where employees are required as part of their duties to interact with people with an increased risk of being infected with COVID-19. As reflected in the Mandated COVID-19 Vaccine Areas, this includes those working in quarantine facilities.
Tier 2 work – where employees are required to have close contact with people who are particularly vulnerable to the health impacts of COVID-19. As reflected in the Mandated COVID-19 Vaccine Areas, this includes those working in aged care facilities.
Tier 3 work – where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment. This is likely to include those providing essential goods and services.
Tier 4 work – where employees have minimal face-to-face interaction as part of their normal employment duties. This is likely to include those who can work from home.
(“the Four Tier Classification”)
Put simply, for employees categorised in Tier 1 or Tier 2, it will likely be reasonable for employers to direct employee’s to receive the COVID-19 vaccine. Conversely, it is unlikely for the same direction to deemed reasonable for employees categorised within Tier 4. Such conclusion is not, however, so easily reached for employees in Tier 3.
The issue with Tier 3 – an ongoing dilemma
If Tier 3 work is conducted in areas of high transmission rates (‘hot spots’) and such workplaces must remain open during lockdown to provide essential services, a direction to receive the COVID-19 vaccine is more likely to be reasonable.
In the same example of essential services and where there are low transmissions rates, the same direction to receive the COVID-19 vaccine may not be reasonable.
An employee’s requirement to get the COVID-19 vaccine, although somewhat clarified by the Four Tier Classification, remains opaque and it should not be solely relied on in assessing whether an employer’s direction is lawful and reasonable.
In the recent decision of Barber v Goodstart Early Learning [2021] (“Goodstart Case”),[1] the Fair Work Commission upheld the termination of a childcare worker who refused their employers reasonable direction to receive a mandatory influenza vaccination.
Although a glimpse into how the Fair Work Commission may consider employer’s powers in when faced with the threat of viral contagious, the ratio in decisions like the Goodstart Case will by no means equally apply to the COVID-19 vaccine.
This is a novel and constantly developing area of law and much guidance will no doubt be proffered to employers and employees alike by the Fair Work Commission in the coming year. The issue at front of mind is that while ambiguity in this area exists—especially surrounding the Four Tier Classification—the more likely litigation will occur.
[1] Barber v Goodstart Early Learning [2021] FWC 2156.