***Note: The COVID-19 Testing and Vaccination Requirements (Contact by Health Workers with Cases) Direction issued by the Queensland Chief Health Officer was revoked on 18 May 2021. Parts of it were incorporated into the Designated COVID-19 Hospital Network Direction issued on the same day.***
In the world of employment law, human rights within the employer-employee relationship are found in laws around unfair dismissal, workplace health and safety, workers’ compensation and freedom of association with respect to employee unions, as well as other laws that impact the employment relationship such as anti-discrimination and privacy.
These laws reflect human rights concepts in an employment law framework. In the era of COVID, the right to refuse medical treatment is getting an airing and, especially with vaccines, that fundamental right is increasingly a flashpoint in the workplace.
Much has been written about the Fair Work Commission (FWC) decision handed down on 20 April 2021 regarding a childcare worker’s unfair dismissal claim. The case was Barber v Goodstart Early Learning [2021] FWC 2156.
Employers and employees are rightly considering their rights and obligations when it comes to COVID vaccinations, hence the close scrutiny of the Barber case.
Although the Australian government has said COVID vaccines will be voluntary and free, in specific States and industries, government orders and directions may require employers to consider implementing mandatory COVID vaccination policies.
In Queensland, the Chief Health Officer issued the COVID-19 Testing and Vaccination Requirements (Contact by Health Workers with Cases) Direction (Queensland Public Health Direction) on 31 March 2021, a response to the Princess Alexandria Hospital cluster involving an unvaccinated doctor who tested COVID positive.
The Queensland Public Health Direction has made mandatory COVID vaccinations an urgent and immediately relevant question for many employers and workers in the healthcare sector in the State. It applies to all employees and contractors of hospital and health services, Queensland Health and Queensland Ambulance Services (QAS) who work in roles that involve diagnosed COVID patients due to coming into direct contact, being located in or attending the same area where patients are treated or accommodated, working in a quarantine facility or transporting a patient.
These employees must have had the first dose of a COVID vaccine by 31 March 2021 (the very day the direction was issued) and second doses as soon as possible, exact timing dependant on the manufacturer of the vaccine. Failure to comply without reasonable excuse carries harsh penalties – a maximum of 100 penalty units or 6 months’ imprisonment.
But first, to the Barber case: The employer, Goodstart Early Learning, imposed a mandatory flu vaccination policy for its staff. Ms Barber, a long-term childcare worker with Goodstart, refused on the grounds of an auto-immune condition she had, which was coeliac disease.
Goodstart terminated her employment and argued the flu jab was an inherent requirement of her job.
Ultimately, Deputy President Lake found that the dismissal was lawful, not because it was an inherent requirement of the job, rather that it was a lawful and reasonable direction for which Ms Barber did not produce satisfactory evidence for a proper exemption.
When Goodstart dismissed her, it claimed she had failed to meet the inherent requirements of her job (i.e. her capacity), not that she had refused a lawful and reasonable direction (i.e. misconduct). The FWC disagreed with this basis for dismissal:
For a criterion to be identified as an inherent requirement is, understandably, a higher bar than identifying a direction as reasonable and lawful. A myriad of reasonable and lawful directions will not constitute an inherent requirement of a role. The reason for this is that an inability to perform an inherent requirement almost certainly provides a valid reason for dismissal; the same cannot be said of a breach of policy, which must be significant enough to constitute a valid reason for dismissal.
In [Qantas v] Christie, the High Court provided that the logical question to ask is “whether the position would be essentially the same if that requirement were dispensed with?” The answer to that question is yes. Where other viable options exist to satisfy those statutory requirements, it is difficult to find that vaccination is an inherent requirement. Further, where the Applicant has successfully performed her role for many years, it is difficult to see how the policy is not simply seeking to artificially impose an inherent requirement upon her.
However, Cr Lake was satisfied that the direction was lawful and reasonable. In finding reasonableness, he cited the following factors:
Goodstart’s statutory obligations under both workplace health & safety laws and laws affecting early education providers.
Government recommendations that employees of childcare facilities be vaccinated.
The need for Goodstart to ensure safety and welfare of children and staff.
That no other risk control methods (such as substituting for a lower risk, isolation, social distancing, and PPE) could be relied upon in a childcare setting.
That Goodstart had appropriately adapted the policy to allow for medical exemptions.
That Goodstart had conducted early consultations with unions (although not so much weight was afforded this factor).
That Goodstart had given staff sufficient opportunity to respond to the policy.
The pivotal question is what impact this decision has on mandatory COVID vaccination policies.
Some observations about the Barber case and COVID vaccines:
Deputy President Lake warned against extrapolating the outcome of the case to apply it to other businesses, employees or industries. Obviously, this warning would equally apply to trying to extend it to COVID vaccinations (but this doesn’t stop lawyers trying anyway!).
As mentioned above, the FWC found that the mandatory vaccination policy went to the conduct, and not the capacity, of the employee. Deputy President Lake at [389] noted that Goodstart’s policy itself allowed for a medical exemption and this suggested it was not an inherent requirement. He said it was counterintuitive for an employer to be able to provide a blanket (e.g. medical) exemption to an inherent requirement. For comparison, the Queensland Public Health Direction recognises that an employee who is not vaccinated may continue to work in a hospital, health service, Queensland Health or the QAS, noting that they may not be able to be vaccinated due to a medical reason such as anaphylaxis. Would this suggest that the COVID vaccination is not an inherent requirement of a healthcare worker’s role in Queensland notwithstanding the Queensland Public Health Direction?
Even if vaccination is not an inherent requirement of a particular job, an employer could still require employees to be vaccinated in the form of a direction, in which case the question is whether this is a lawful and reasonable direction which if not complied with would be misconduct giving grounds for dismissal.
At first glance, based on Barber, it would seem a mandatory COVID-19 vaccination policy is likely to be reasonable, especially if supported by a government directive such as the Queensland Public Health Direction. However, there are some factors I think are noteworthy:
Legal requirements: In the case of new vaccines such as the COVID vaccines, a workplace policy should not go further than necessary under government requirements such as the Queensland Public Health Direction. Government requirements should be interpreted and applied carefully. For example, the Queensland Health Direction applies to employees likely to come into contact with diagnosed COVID 19 patients, not to all employees working in hospitals, health services and ambulance services.
Government recommendations: Apart from government directives in certain frontline sectors like healthcare and quarantine, there are as yet no government recommendations for mandatory COVID vaccines for employees.
Status of the vaccine: The AstraZeneca and Pfizer COVID vaccines are only provisionally registered with the Therapeutic Goods Administration (TGA) , unlike the annual flu vaccines. The TGA registered these vaccines on the basis of preliminary clinical data and is awaiting further clinical data on the vaccines before it finally approves the COVID vaccines. The US Centre for Disease Control (CDC) has likewise passed COVID vaccines on an emergency basis only. For this reason, the President of the Nurses Professional Association of Queensland (a nurses’ union) called the vaccines ‘experimental’. She was commenting on a finding that 80% of 400 nurses the NPAQ surveyed said COVID vaccines should not be forced and argued that nurses could not give informed consent because the TGA was still assessing the vaccines.
Risks of the vaccine: There have been more fatal risks reported as associated with the COVID vaccines than with the flu vaccine (in addition to risks that accompany most vaccines), such as the rare risks of thrombocytopenia associated with the AstraZeneca vaccine.
Other controls: There may be other controls that could be implemented, such as - in a health services setting - moving employees to non-COVID wards or ensuring they do not work in quarantine facilities.
Reasonable opportunity to respond: The policy must afford employees a reasonable opportunity to comply – noting of course that in the era of COVID, government directions and orders such as the Queensland Public Health Direction often contain very urgent deadlines within them, which would influence how reasonable employers can be with timing and deadlines.
The Barber decision emphasised the importance of an adequately documented medical reason when an employee claims a medical exemption. Although Ms Barber could show she had an auto-immune condition, she was unable to provide evidence from a doctor to say the vaccine was unsafe for her. Conversely, medical evidence presented by Goodstart’s expert medical witness was that flu vaccination was safe for someone with her condition. Expert evidence led at the hearing suggested there are few medical conditions which would lead a doctor to certify that the flu vaccine was unsafe for some (examples given were anaphylaxis and Guillain-Barre syndrome). With the COVID-19 vaccines, could there be a wider range of medically recognised conditions that would provide a valid reason for exemption, especially given the risks we have been seeing with the vaccines? In an employment law context, the answer may depend on any expert evidence presented to the FWC.
Looking at the situation through a human rights lens, the right to refuse medical treatment is circumscribed in the employment law framework and, in this case, lost in the balance against the employer’s health and safety and other legal obligations. Discrimination was not a factor here and Ms Barber's job was a casualty. Ms Barber’s choice not to comply with the forced vaccination policy led to her losing her job, which was held not to be harsh, unjust and unreasonable, and hence lawful.
It does cause one to wonder: what would be an employee’s rights if they do suffer an adverse reaction to a vaccine mandated by an employer – what happens then under workplace health and safety laws, workers’ compensation, or insurance?
More vaccine cases should emerge before the FWC in the coming months arising from vaccination policies, in Queensland and elsewhere. The Barber decision is likely just the first that will cause a stir.