Update on Legal Developments on Workplace Vaccination

Workplace Vaccination Laws

Both employers and employees have work health and safety obligations when it comes to a safe working environment and the health and safety of employees. It is unlikely that a ‘one size fits all’ approach within a business would be considered reasonable from a legal standpoint when considering mandating vaccination – against covid-19 or otherwise.

Recent decisions out of the Fair Work Commission in Barber v Goodstart Learning [2021] FWC 2156, Kimber v Sapphire Coast Community Aged Care [2021] FWC 1818 and Glover v Ozcare [2021] FWC 2989 related to the issue of employees refusing to comply with directions for mandatory influenza vaccinations (without valid medical exemption).

The findings that have resulted from these cases indicate that requiring an employee to receive an influenza vaccination in higher risk industries – i.e. childcare and aged care – is likely to be considered a lawful and reasonable direction that can form a valid basis for terminating an employee’s employment.

What we are yet to see is a decision regarding an employee who has refused to be vaccinated and does not work in a ‘high risk’ industry such as aged care or childcare or provide an essential service.

Attending work around unvaccinated colleagues

Employees do have the right not to attend work or to cease work if they have a genuine, reasonable concern that they would otherwise be exposed to a serious risk to their health or safety. However, what would need to be considered in the circumstances around non vaccinated employees would likely be factors such as:

  1. if the work is to be conducted in a well-ventilated space;
  2. whether social distancing can be observed in the space;
  3. whether masks are being worn in the workplace;
  4. whether the work is to be done in an area of low case transmission etc.

It would most likely be considered a lawful and reasonable direction for an employer to direct an employee who is hesitant or refusing to attend work with unvaccinated colleagues, to attend or face possible disciplinary action.

Some people may be concerned about whether or not to get a vaccination which is being mandated by an employer for fear of suffering side effects. It should be noted that there may be the ability for an employee who has suffered side effects to a vaccination which they got as part of a mandate by their employer, to make a workers compensation or personal injury claim.

In a recent decision out of the New South Wales Personal Injury Commission in Sara v G & S Sara Pty Ltd, an employer was held liable for the death of an employee who had contracted Coronavirus while he was travelling in the course of his employment. The employee suffered from various significant symptoms and subsequently passed away as a result of contracting the virus. The Commission found that the employee’s wife, who brought the claim, was entitled to compensation as a result of the injury he had sustained during his employment.

At present, there have not been any decisions in relation to an employers expectation that employees get a particular vaccination not being a lawful and reasonable direction. However, at present, it does not appear that alternatives to vaccination have been considered either, for those who do not wish to be vaccinated for reasons other than medical grounds.

It may well be that, in the future, alternate possibilities such as a negative result from a rapid antigen test, mask wearing and social distancing, individually or in combination, would be considered reasonable measures to be taken in workplaces for unvaccinated employees to remain working.

If you are unsure about your rights at work in relation to vaccination or lawful and reasonable directions (vaccination related or otherwise), please contact us on 1300 851 430.