When a COVID-19 vaccine arrives, can ECEC employees be forced to have it?

In May 2020, an educator and educational leader from a prominent early childhood education and care (ECEC) provider brought cases of unfair dismissal before the Fair Work Commission, claiming they had been unfairly dismissed after refusing to get vaccinated against influenza. 

 

Although the cases were ultimately dismissed by the Commission because they were filed out of time, the broader question ‘Can an ECEC employer force employees to have a vaccination?’ again looms within the sector as the world gets closer to developing a vaccine for COVID-19. 

 

In this piece The Sector explores the legalities and ethical considerations behind employer directives for vaccination in an ECEC context, based on a piece prepared for Smart Company by Trent Hancock, Principal and co-founder of Jewell Hancock Employment Lawyers. Readers should note that the following story cannot be construed as legal advice and is not intended as such. 

 

Many ECEC employers provide free flu vaccinations for their team members each year, and provide a process whereby those with medical reasons for not being vaccinated can seek an exemption.

 

As Australia grappled with the outcomes of the COVID-19 pandemic, however, the importance of these vaccinations in the eyes of an employer became sharpened, and some employers choose to issue a directive that those who had no medical reason not to be vaccinated must do so before working directly with children. 

 

In the two cases outlined above, both employees refused to comply with the direction and both were dismissed as a result. 

 

Given the dismissal of the cases the reasonableness of the direction was not examined directly in an ECEC context, however at the core of any employment relationship is the employer’s right to issue a ‘lawful and reasonable direction’ to an employee. 

 

Is it lawful and reasonable to require vaccination? 

 

The answer to this question lies in the nature and circumstances of the request. For someone working exclusively from home, dealing with accounting for an import/export form, the request to vaccinate may not be reasonable or lawful, because chances of exposure to a vaccine preventable disease during the course of employment are incredibly low. 

 

For someone working directly with vulnerable and at-risk populations, such as children and the elderly, the request may be deemed reasonable and lawful, because risk of exposure to the employee is high, and the risks of passing on the vaccine preventable disease or illness to a vulnerable person are also high. 

 

This is especially true for those in ECEC who work with children who are too young to receive vaccinations, leaving them especially reliant on those around them to undertake every possible precaution to avoid passing on vaccine preventable illness or disease. 

 

Is it discrimination? 

 

Some of those who are opposed to mandatory vaccination believe a requirement to vaccinate is at odds with their own cultural or religious beliefs, and as such, requiring a vaccination as a condition of employment is discriminatory. 

 

The Fair Work Act 2009 (Cth) prohibits discrimination against an employee on the basis of their political opinion or religion. This may include political or religious opposition to vaccinations. 

 

That being said, the lawful and reasonable directive put in place to ensure the welfare of vulnerable people may ‘trump’ the Fair Work Act in some cases, because typically, discrimination actions arise when action is taken against an individual or group of individuals, rather than for the greater good of a whole. 

 

It may then be that a genuine and reasonable requirement of employment in the education and care sector is that educators and other staff members be vaccinated so as to protect vulnerable children from the spread of disease. 

 

Employer obligations 

 

Under workplace health and safety requirements, employers must demonstrate their commitment to keeping the workplace as free from harm and hazard as possible, and this may extend to controlling the spread of infection. 

 

Employees, as well as taking reasonable care of their own health and safety, and the health and safety of others they work with, need to cooperate with the efforts made by their employer with regard to any action the employer undertakes to keep them safe. 

 

Earlier this year, the Victorian parliament weighed in on this issue and passed the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020 (Vic) to amend the Health Services Act 1988 (Vic) and the Ambulance Services Act 1986 (Vic).

 

The stated purpose of the legislation was to enable the Department of Health and Human Services to direct hospitals and health service establishments to require employees to be vaccinated against specified diseases to enhance the protection of the health and safety of patients and employees.

 

Those new laws required healthcare workers to be fully immunised to protect themselves and patients against the flu each year, as well as whooping cough, measles, chicken pox and hepatitis B. 

 

As well as doctors, nurses, paramedics and dentists, the rules extend to orderlies, cleaners and staff working in public sector residential aged care services. 

 

Those who refused to be vaccinated “may face work restrictions or be redeployed to other parts of the health service.”

 

Discrimination was also covered in the legistlative changes, which provide that any action taken to comply with a direction issued under the legislation does not constitute discrimination on the basis of political or religious belief or activity for the purposes of the Equal Opportunity Act 2010 (Vic). 

 

Department of Health guidance 

 

The Department of Health has provided some guidance to employers on implementing occupational vaccination programs for people at occupational risk, including those working in early childhood education and care (ECEC). 

 

If employees have a “significant occupational risk of acquiring a vaccine-preventable disease” employers should implement a comprehensive occupational vaccination program, the Department said, which might include:

 

• A vaccination policy;
• Current staff vaccination records;
• Information about relevant vaccine-preventable diseases; and,
• A policy for managing vaccine refusal.

 

The Department of Health also recommends that employers should take “all reasonable steps to encourage non-immune workers to receive the recommended vaccines”. 

 

The Victorian Department of Health and Human Services provides similar guidance to employers, particularly for people working with children. It recommends that employers:

 

• Develop a staff vaccination policy that states the vaccination requirements;
• Take all reasonable steps to encourage non immune staff to be vaccinated;
• Document any refusal to comply with vaccination requests; and,
• Exclude staff from the workplace who are not vaccinated in the event of an outbreak.

 

Mr Hancock noted the following in relation to mandatory vaccination in the ECEC sector: 

“While the issue of mandatory workplace vaccinations is still far from clear, it would appear that employers in the healthcare and childcare sector have a particularly compelling basis to direct employees to be vaccinated, which has been recognised and legislated by some state governments.”

To access Mr Hancock’s piece in full, please see here.