Can I be sacked for refusing to receive the COVID 19 vaccine?

The answer depends on who you work for, what you do for work, and why you refuse to get vaccinated.

For the purpose of this article, let’s assume you are covered by the unfair dismissal provisions in the Fair Work Act. In those circumstances, your employer is required to have a valid reason to terminate your employment.

Whether or not refusing the COVID19 vaccination would constitute a valid reason for your termination has not yet been determined by the Fair Work Commission.

However, recent decisions of the Fair Work Commission have determined that, in certain workplaces, a mandate by an employer that all of their employees working in certain capacities, who were able to do so, receive the flu vaccine, was a lawful and reasonable direction. A failure to follow a lawful and reasonable direction is a valid reason to terminate a person’s employment.

The Flu vaccine: a case study

Two recent Fair Work Commission decisions from early 2021, are of particular note.

The first decision involved the termination of an employee who worked as a Care Assistant in Aged Care, for refusing to receive the flu vaccine. The employer, following the issuing of an Aged Care Direction from the Queensland Chief Health Officer making it mandatory for employees working on-site at aged care facilities to have the flu vaccine unless a vaccination was not available to the employee), issued a new Employee Immunisation Policy to make flu vaccines mandatory for all employee in client-facing roles. The Fair Work Commission determined that the employer’s requirement that all employees in client-facing roles receive the flu vaccination was a lawful and reasonable direction and that the employee’s refusal to comply with that direction constituted a valid reason for her termination.

The second decision involved the termination of an employee working in early childhood education, whose employer had introduced an immunisation policy, requiring that all staff must receive the influenza vaccination unless they have a medical condition which makes it unsafe for them to do so.

The employee claimed to have a sensitive immune system, however, her employer determined that the medical certificate she provided was not sufficient to support an objection to the influenza vaccination, and her employment was terminated for her failure to be vaccinated and meet the inherent requirements of her role.

The Fair Work Commission in that matter found that it is reasonable for a childcare provider to mandate flu vaccination for staff who deal with children on regular basis and in close proximity and that the refusal by the employee to receive the flu vaccine constituted a failure to abide by a reasonable and lawful direction, and therefore constituted a valid reason for her termination. The employee’s claim that she had a sensitive immune system was not supported by any evidence from medical professionals, and as such, the Fair Work Commission found that she did not have a medical condition that made it unsafe for her to receive the flu vaccine.

As the above decisions demonstrate, where an employee is working in a client-facing role, with vulnerable clients, such as the aged and young children, a refusal to receive a flu vaccine without a sound medical basis will justify an employer terminating their employment.

Of course, that doesn’t mean every employee across all industries can be sacked for refusing a covid 19 vaccine. The applicability of any public health orders mandating that particular positions must be vaccinated to allow a business to operate is particularly relevant to determining if an employer can sack an employee for refusing the Covid 19 vaccine. However, if an employer wishes, with some justification, to go further than the public health orders, as long as they had a sound basis for doing so, and they have consulted with their workforce prior to implementing a mandatory covid 19 vaccination policy, they could still terminate an employees employment, if, in all of the circumstances, their direction to the employee under that policy was found to be reasonable.

An employer would also be required to explore reasonable alternative employment options, prior to terminating an employee who is required to receive a Covid 19 vaccine, either due to the impact of the public health orders or under the employer’s mandatory vaccine policy. Given the widespread speculation about public health orders and restrictions being lifted later in the year, it may be that a period of stand down or work from home on alternative, productive duties is something that an employer may need to properly consider in the short term, instead of terminating an employee who refuses to receive a Covid 19 vaccine.

Finally, employees who are not able to receive the Covid 19 vaccine for legitimate medical reasons, may be protected from having their employment terminated for refusing to receive a Covid-19 vaccine, thanks to the State and Federal Anti-Discrimination legislation. Such a medical condition could fall under the definition of a ‘disability’ under that legislation, and imposing a blanket policy requiring all employees to be vaccinated against Covid 19, that doesn’t factor in an employees ‘disability’ is arguably indirectly discriminatory: because an employee with a medical condition that prevents them from receiving the Covid 19 vaccination, is not able to comply with the direction in the same way other employees can.  However, an employer is only required to make ‘reasonable adjustments’ for people with a disability in the workplace, under the anti-discrimination legislation.

Again, as with the above discussion regarding reasonable alternative employment opportunities, ‘reasonable adjustments’ could include working from home or on alternative duties away from client-facing roles.  However, an employer is not required to make reasonable adjustments to accommodate an employee’s disability if the required reasonable adjustments would impose an unjustifiable hardship on the employer (for example, that the cost of an adjustment would be prohibitive).

Disclaimer: This article is intended to provide general information to the reader. It is in no way intended to and does not constitute legal advice and should not be relied upon as such. An employee or employer should obtain specific legal advice prior to taking any action with regard to any termination decisions and should not rely on this article.

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