Now that the COVID-19 jab is available in Australia, there is a lot of talk about whether employers can mandate compulsory vaccinations as a condition of employment. It is interesting to watch what is happening in the US, and according to a recent article by Korn Ferry they reported that first, businesses encouraged employees to get vaccinated, then they tried to incentivise them through payments or other methods. Now, a small but growing collection of businesses are outright demanding vaccinations.

In the states, they reported yet another example of a pandemic-created moving targets, where companies are beginning to give employees deadlines for getting inoculated against COVID-19, and even placing the requirement in ads for new jobs 🤔🤔🤔.  In some cases, employees who don’t make the deadline, face suspension or possible termination, a circumstance that spans multiple industries and positions, suggesting that the gap between “hard-liner” firms and companies with fewer restrictions is growing.

The article reported that legal experts in the US have long said businesses can require vaccinations, except where the employee can cite medical or religious factors. In the beginning, most organisations were reluctant to mandate vaccinations, but they have “grown increasingly more receptive” to the idea, says Ron Porter, a senior client partner in Korn Ferry’s Human Resources Center of Expertise. A recent Yale School of Management Chief Executive Leadership Institute survey found that 72% of current and recent CEOs of major companies were open to mandates. But Porter says it isn’t just leaders who want employees vaccinated—it’s some of the workers’ colleagues, too. “There’s a growing sense of frustration from those who have been vaccinated towards those who haven’t,” he says.

So what is the G O here, you may be asking? Well, recently the Australian Federal Government issued a statement asserting, on the advice of health officials, that the current COVID-19 vaccine is not mandatory, and employers will be unable to force employees to become vaccinated. 💉💉💉

However, our fearless leader aka SCOMO, has warned that health advice is subject to change, and if the vaccine were to become mandatory, this will need to be enforced through a public health order under state laws. 🤔🤔🤔 So once again the states will be required to enforce the rules around this, which is really interesting.

We recently wrote an article on this topic because legal experts here are also unsure about whether businesses can mandate vaccination unless they have a good reason to do so, for instance, high-risk industries such as health and childcare. A recent case when a mandatory vaccination requirement was deemed “lawful and reasonable” and an employee dismissal decision was upheld, has everyone talking. Essentially, the Fair Work Commission ruled that an employer had valid reasons to dismiss an employee for refusing its direction to get a flu vaccination.

By way of back story, in April 2020, Goodstart Early Learning introduced a policy that required all staff to receive the flu vaccination unless they had a medical condition that made it unsafe for them to do so. The key to note here is that employer had a policy (which is going to be needed should you want to mandate (we have said this before but super important).

Once the policy was introduced one of their lead educators objected to getting vaccinated, claiming she “had an allergic reaction to the vaccine about a decade ago, that she had a sensitive immune system, and had a history of auto-immune disease”.

Following a four-month process, where the employer had numerous discussions with the employee about her objections and where they have her a chance to seek a medical exemption (which she failed to receive) her employment was terminated in August.

She then claimed unfair dismissal, stating that her medical conditions made it unsafe for her to be vaccinated, and therefore claiming this warranted an exemption. But wait there is more. Deputy President Lake noted at the outset that “curiosity surrounding vaccination is at an unnatural high; protection against COVID-19 is becoming a tangible reality for the population and guidance surrounding how this will be administered in the workplace is scarce”.

He stressed, however, that his findings were specific to the facts of this case, and any attempt to extrapolate further “would be audacious, if not improvident”. Mandating vaccinations won’t ever be “easy”.

While this decision deals with a “highly topical” issue, the FWC was “at pains” to make clear it should not be considered a precedent. In fact, the Deputy President went a step further to say it shouldn’t extend to the entirety of the employer’s business, as the vaccination policy would apply differently to each employee and their specific circumstances.

I mean you couldn’t make this stuff up, and a recent article in HR Daily stated that “Governments have made it clear that most employers will not be able to lawfully require employees to have the COVID-19 vaccination. But there will be exceptions in “limited circumstances”, Feltham tells HR Daily, but these will be “highly fact-dependent” and will need to take into account:

  • specific health law requirements
  • enterprise agreement or employment contract conditions that include vaccination provisions
  • whether the direction requiring vaccination was lawful and reasonable.

“Where an employee is required to interact with other people who may be at an elevated risk of infection or to have close contact with other people who may be vulnerable to the health impacts of COVID-19, then it will become easier (although not easy) for an employer to establish that the requirement to become vaccinated is reasonable,” he notes. To learn more details about this highly interesting case check it out here =>

Barber v Goodstart Early Learning [2021] FWC 2156 (20 April 2021)

Rest assured team Gurus is all over this one and we are watching with interest, so grab your popcorn as this one unfolds! 🍿🍿🍿

If you are wanting to join in the conversation and have your say, we are doing a really short survey you can do it right here.

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