Compulsory Covid/flu vaccinations in the employment spotlight

Kimber case

The recent case of Kimber^[1], 29 April 2021 considered the issue currently at the forefront of many not-for-profit employers’ minds – just when, can or should an employer make a vaccination for its workers mandatory?

In the Kimber case, Ms Kimber was employed as a part-time receptionist at an aged care facility operated by Sapphire Coast Community Aged Care in Pambula, NSW. At the time of Ms Kimber’s dismissal, a NSW Public Health Order (PHO) was in place directing that no one enter or remain on the premises of any residential aged care facility if, amongst other things, they haven’t had an up-to-date influenza vaccination.  The direction goes on to say that the operator of an aged care facility must take all reasonable steps to ensure that the PHO is not contravened.  There are substantial penalties for failure to comply.  Under the PHO, the Minister has the ability to grant an exemption from the requirement to have had a flu shot if satisfied that it is necessary to protect the health and well-being of the residents or staff of a residential aged care facility.

Ms Kimber had had a flu shot in 2015 and 2016 but refused to be vaccinated in 2020 on the basis that she had suffered a severe skin inflammation, had an intense burning sensation and that her internal organs were affected following the 2016 shot. There was no medical evidence of any link between the 2016 flu shot and Ms Kimber’s conditions such as to demonstrate any medical contraindication to the flu vaccination.  Nor was there any evidence that Ms Kimber held or had sought an exemption from the Minister.

Ultimately, Ms Kimber was dismissed because her failure to have a flu shot meant that she could not, in light of the PHO, carry out the inherent requirements of her role. Although the Fair Work Commission found that there was no actual direction from the employer to have the flu shot, it found that the employer had firmly communicated to Ms Kimber that having the flu shot was mandatory and the if she didn’t, her employment would be terminated. Importantly, the Commission also found that, in circumstances where there is a PHO requiring the vaccination for attendance at an aged care facility, any such direction had it been given by the employer would have been both reasonable and lawful. Further, it found that Ms Kimber’s refusal to get the flu shot meant that she could not carry out the inherent requirements of her role. This amounted to a valid reason for the dismissal. As there were no other factors which made the dismissal harsh, unjust or unreasonable, the dismissal was not unfair.

What about the COVID-19 vaccination?

An employer can direct an employee to get a COVID-19 (or any other) vaccination provided that the direction is lawful and reasonable. The Kimber case has confirmed indications given in guidance issued by the Fair Work Ombudsman and SafeWork Australia in January 2021 that a direction given to workers to be vaccinated in circumstances where a PHO (or similar – in Queensland these are Public Health Directions) mandates vaccines for workers at particular facilities ^[2], the direction will be both lawful and reasonable. However, the guidance issued to date suggests that in most cases, it will not likely be lawful and reasonable to mandate a COVID-19 vaccination.

In the absence of a Public Health Direction or similar requirement, employers will need to consider what is lawful and reasonable in the circumstances of their workplace and workers, taking into account the nature of each employee’s role, the risks of not directing employees to be vaccinated, the effect of any PHOs or similar, availability of the vaccine and the employee’s personal circumstances. Whilst it is likely to be lawful to make such a direction to most employees, employers really need to focus on whether a direction will be reasonable by considering:

• Is there a legal obligation on the employer which requires them to mandate a vaccination?
• Is there another reason why an employee should be vaccinated (e.g. WHS concerns)?
• Does the employee have a valid reason why they can’t comply with the direction (e.g. medical contraindications)?
• How available is the vaccine (this is particularly an issue with the COVID-19 vaccine)?
• How necessary is it for this particular employee to be vaccinated (for example, it is unlikely to be reasonable to direct an aged care provider’s corporate staff who do not enter aged care facilities as part of their role to be vaccinated)?

Employers who consider that they do need to mandate vaccinations in their workplaces should develop and implement a comprehensive policy outlining the requirement to be vaccinated, which employees it applies to, when exemptions may apply and consequences for failing to comply. We would, of course, be happy to assist with such a policy should that be required.

[1] Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818

[2] As is currently mandated in Queensland under Aged Care Direction (No. 28) issued on 28 April 2021.