If an employee fails to follow a lawful and reasonable direction to be vaccinated and is therefore unable to fulfil an inherent requirement of their position, they can be subject to disciplinary action, such as unpaid suspension or termination of employment.
If the employee refuses to be vaccinated based on a protected attribute under anti-discrimination laws, such as a genuine medical reason, pregnancy (if there is medical evidence of vaccine risks) or religious belief or activity, the employer can only take action against them if it does so on the basis of vaccination being reasonably necessary to protect the health and safety of any person, or the public generally. If an employer wishes to make vaccination a mandatory requirement, they must prove how this health and safety exception applies. In our view, most employers will be able to demonstrate that this health and safety exemption applies to them.
That is in many cases, even if the employee refusing to be vaccinated can point to a “protected attribute” under discrimination law, they may still be unable to perform an inherent requirements of their role.
If the employee is refusing to be vaccinated based on their preferred choice of vaccine (for example, Pfizer) not being readily available, but otherwise have indicated a willingness to get vaccinated once it becomes available, the employer is unlikely to have proper grounds to take action against the employee, unless there is contrary public health advice. In our view, whilst an employer would be able to mandate vaccinations, it is unlikely to have the power to mandate the type of vaccine an employee should get. In this type of situation, there may be a frustration of the employment due to reasons out of the control of either party (i.e. the employee cannot work because they are unvaccinated, but not due to their own fault). This may lead to the employee being suspended (without pay) or allowed to access their leave entitlements until they are able to get vaccinated. If employers were to adopt this approach, it may also force the Government to expediate and place further priority on getting more doses or certain vaccines.
An alternative may be to impose other conditions on the employee until they are vaccinated. This may include restrictions on use of lunch rooms, or additional PPE requirements at the workplace (assuming the workplace is permitted to remain open).
A further issue is what employers can do if an employee refuses to get vaccinated because they hold an ‘anti-vax’ belief. This belief in itself is not likely to provide a ground for an employee to refuse vaccination as the protected attribute of ‘political belief or activity’ has been interpreted narrowly and it is unlikely to apply to people who are simply opposed to vaccines or who rely on pseudo-science. As outlined above, even if anti-vax was considered a “political belief” – we consider employers would still be able to indicate that an unvaccinated person could not meet the inherent requirement to work safely.
With regard to employees who are reluctant to be vaccinated, we recommend employers should adopt a sensitive approach, and seek to understand the reasons. There are people who may hold this view out of genuine fear of any injection, or may have genuine fears due to inconsistent information in the media. For example while the Pfizer vaccine appears to be the vaccine of choice in Australia – in the United States the FDA only gave this vaccine full approval in the last week of August 2021.
If an employee is terminated for refusing to get vaccinated, they could bring a discrimination / general protections claim, or an unfair dismissal claim, and suspensions without pay could lead to a “constructive dismissal” claim. Please note, in a number of recent decisions of the Fair Work Commission where a reason for termination related to a refusal by employees to undergo a flu vaccine (in aged care and childcare settings), it has been held that requiring a flu vaccine was a lawful and reasonable direction. While these cases turn on the facts, we consider that the Commission may adopt a similar position in relation to COVID-19 vaccinations. See here for our article which discusses these decisions.
Ultimately, if you have an employee who has indicated that they will refuse the vaccine, we recommend you contact us to obtain tailored legal advice.