Disclaimer: The directives in this article relating to the COVID-19 pandemic may no longer be in force. Please use caution if you are citing legislative material from this article as laws are subject to change. We recommend that you seek the most up-to-date law.

In light of the most recent COVID-19 outbreak in Sydney, there is widespread discourse surrounding the vaccine rollout in Australia. Whilst the COVID-19 vaccination is currently voluntary, the NSW Government has recognised there may be future circumstances in which proof of vaccination is necessary; for example, border entry or intrastate travel. Further, many industries such as the aged care sector have begun considering mandatory COVID-19 vaccines for all staff in order to prevent further outbreaks in vulnerable communities. So it begs the question, can an employer force an employee to get vaccinated?

Can my employer enforce mandatory vaccinations?

Mandatory vaccination policies can be considered lawful and reasonable, based on industry-specific considerations. In an era before COVID-19, this was only ever contested with the annual flu vaccine. But now, it has become strongly encouraged for aged care workers to get the COVID-19 vaccination, and some workers are objecting.

Whilst the issue of mandatory COVID-19 vaccines remains undetermined at this stage, Courts have recognised the ability of employers to terminate employment for failure to comply with other mandatory vaccination programs.

Recent Case Studies

The Fair Work Commission recently held in Barber v Goodstart Early Learning [2021] FWC 2156 that breaching a childcare employer’s mandatory vaccination policy constituted grounds for fair dismissal. In this case, Barber objected to the vaccination due to a “sensitive immune system” and other medical grounds, but failed to obtain a medical certificate exempting her from requiring the vaccine. In determining that the mandatory vaccination policy was reasonable, the Fair Work Commission considered various factors including;

• Goodstart’s occupational health and safety obligations under the relevant legislation;
• Government advice encouraging vaccination;
• The unique risk to children who cannot get vaccinated due to their age;
• Whether the policy allowed for medical exemption; and
• Whether the cost of vaccination was covered by the employer.

This finding was based on the previous case of Arnold v Goodstart Early Learning [2020] FWC 6083, in which Ms Arnold pursued an unfair dismissal claim after being dismissed for failing to comply with the directive that all employees receive a flu vaccination. Ms Arnold’s objection was not based on medical reasons, but rather she relied on international human rights instruments to justify her refusal. The Fair Work Commission observed that Goodstart’s policy regarding vaccination was ‘lawful and reasonable in the context of its operations’ and was ‘necessary to ensure the company met its duty of care to the children in its care’.

Considerations for employers

Whilst the above cases illustrate that mandatory vaccination programs can be legal, this is dependent on the specific circumstances of the employee and their role. Generally, employers cannot introduce blanket mandatory vaccination programs unless there are genuine health or compliance justifications. In the context of COVID-19, it is important for employers to consider the concerns held by employees in relation to access to vaccines and potential side effects and allow employees to express their concerns where they exist to avoid feelings of discrimination.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with a variety of employment law matters, whether you are the employer or employee.

If you need further advice or assistance, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.