When are mandatory flu vaccinations in the workplace considered lawful and reasonable?

Key Points:

  • Mandatory vaccination policies can be considered lawful and reasonable, depending on a number of industry-specific factors;
  • Mandatory influenza vaccination for Childcare Educators was found to be a reasonable policy, warranting dismissal for failure to comply without an exemption; and
  • A mandatory vaccination policy does not immediately make vaccination an inherent requirement of the role.
The Fair Work Commission (FWC) recently ruled in favour of an employer’s mandatory vaccination policy, when considering an unfair dismissal application.

This is the second decision involving childcare provider Goodstart Early Learning (Goodstart), following the late 2020 decision of Arnold v Goodstart Early Learning [2020] FWC 6083. In that case, the FWC found the childcare provider’s mandatory influenza vaccination policy was lawful and reasonable for those employees caring for children.
Barber v Goodstart Early Learning
In this case, the FWC dealt with the issue of whether Goodstart unfairly dismissed a Childcare Educator under their mandatory influenza vaccination policy, where the worker objected to the vaccination on medical grounds.

The Educator sought a medical exemption from the vaccination due to a “sensitive immune system,” coeliac disease, and previous reaction to the vaccine, however she failed to obtain a medical certificate from a doctor exempting her from requiring the vaccine.

The employer argued that the employee was dismissed under a lawful and reasonable policy and did not have the capacity to meet inherent requirements of the role without having the vaccination.

The FWC, considering all relevant circumstances, deemed the relevant issue misconduct for not following a lawful and reasonable direction.

The FWC found that:
  • Mandating vaccination does not make it an inherent requirement for the role;
  • The mandatory influenza vaccination policy was a lawful and reasonable direction because:
    • - Goodstart has statutory obligations under the Work Health and Safety Act 2011 and unique additional obligations regarding hygiene and infectious disease control;
    • - Goodstart operates within an industry where safety is paramount, children are particularly vulnerable, and there is close contact between staff and children who lack hygiene skills;
    • - Regardless of the degree of effectiveness of the vaccination, it still directly reduces the risk of infection to children;
    • - Other controls to supplement lack of vaccination are impractical or ineffective; and
    • - The policy provided a medical exemption for staff with a condition making vaccination unsafe for them.
As such, the Educator was required to comply with the policy, either as a condition of her contract of employment or an implied condition at common law. Goodstart therefore had a valid reason to dismiss the Educator.
Circumstances change depending on the workplace
The FWC cautioned against this decision being applied to other industries, or even other roles within Goodstart, stating:

“An attempt to extrapolate further and say that mandatory vaccination in different industries could be contemplated on the reasons above would be audacious, if not improvident.”

Nonetheless, it is clear that employees are required to comply with reasonable and lawful policies set out by employers.
Takeaway
The FWC found that the employer was able to lawfully dismiss the Childcare Educator due to her conduct, because she failed to comply with the lawful and reasonable direction to receive the influenza vaccination.

The decision indicates the FWC may consider the following factors when determining whether a policy is lawful and reasonable:
  • The industry;
  • The nature of the employee’s work;
  • The terms of the contract of employment;
  • Customary practices within the industry;
  • The employer’s statutory obligations (such as work health and safety);
  • Government recommendations;
  • Union consultation; and
  • Policy implementation.
This case demonstrates that the FWC considers a mandatory influenza policy lawful and reasonable in circumstances where:
  • The employer had statutory obligations regarding the care of children that went beyond that of a normal employer;
  • The workplace had unique organisational challenges making alternatives to vaccination impracticable, and alternative controls were duly considered;
  • The requirement for vaccination was within the scope of the contract of employment; and
  • There was a medical exemption for staff who presented medical evidence.
Whilst the FWC cautioned against applying the decision to other roles or industries, the two decisions involving Goodstart indicate it is reasonable and lawful for a workplace policy to require childcare workers to obtain the influenza vaccination.

Contact Hicksons Lawyers for a discussion regarding the suitability of your workplace policies.

Post by Hicksons Partner, Warwick Ryan, and Solicitor, Jacqui Waterhouse
 

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