Mandatory Influenza Vaccinations – The New Norm?

Background
With the Covid vaccine debate settling down, many companies are re-evaluating their positions on workforce influenza vaccinations. Government mandates for influenza vaccines emerged during the pandemic and case law is following suit on the reasonableness of mandatory influenza vaccines in industries like aged care, health, and even early childhood education. 

Department of Health figures in 2019 showed that only half of doctors and other health workers were vaccinated that year against influenza and now in 2022 the influenza vaccine is mandatory in Victoria for all health care workers. The vaccine environment is changing and in some industries influenza vaccines may even be part of a company’s duty of care. Since the rise of Covid, the WA Government has highly recommended vaccinations against influenza, and employers should consider their influenza vaccine policy.

Below summarises the Government directions in place across Australia for influenza vaccinations and what to do when no directions apply.

State Directions Snapshot:

Western Australia: Influenza vaccines are mandatory to enter residential aged care centres. Influenza vaccines are highly recommended for health care workers.

Victoria: Influenza vaccines are mandatory for all employees working in healthcare services, including those performing non-clinical roles. Influenza vaccines are also mandatory for all residential aged care services operated by public health services.

New South Wales: Influenza vaccines are strongly recommended for all staff and visitors to aged care and are recommended for residents. Influenza vaccines are mandatory for health workers, students and other clinical personnel in high-risk clinical positions.

South Australia: All visitors to residential aged care facilities must have received an influenza vaccination.

Northern Territory: All visitors to residential aged care facilities must have received an influenza vaccination.

Queensland: The influenza vaccination is strongly encouraged for anyone entering disability accommodation services and residential aged care facilities in Queensland. This includes staff, visitors, health practitioners, volunteers and others such as cleaners, tradesman, gardeners and maintenance staff

Thomas Tew v The Bethanie Group Inc. T/A Bethanie Aged Care [2022] FWC 96

The case of Thomas Tew is a good reflection of the impact of the government directions. Mr Tew was an electrician working in a number of social centres, housing locations, residential independent living villages and aged care facilities. Mr Tew was directed to get the influenza vaccine or else he would not be able to complete his duties, he refused this request, and his employment was subsequently terminated. The Fair Work Commission held that Mr Tew performed 75% of his work in residential aged care facilities. Therefore, he was required to be vaccinated in order to comply with the Government Directions. The direction to be vaccinated by Bethanie Group was therefore lawful and reasonable. As Mr Tew could no longer lawfully attend aged care facilities (without breaching the Government Directions), he could not fulfil the inherent requirements of the job.

What to do when no Government Directions apply:

Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083 and Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156

A large childcare company, has twice had their mandatory influenza vaccine policy upheld by the Commission. The Commission observed that it was arguable that the policy was lawful and reasonable in the context of the business’ operations, and that the policy was necessary to ensure that the childcare meets its duty of care with respect to the children, balancing the needs of its employees. The commission looked at the following factors:

  • the business operated within an industry which was highly regulated and where safety was of paramount importance;
  • children represented a particularly vulnerable group; and
  • because an employer can be held liable for the transmission of infectious diseases in the workplace.

Ms Maria Corazon Glover v Ozcare [2021] FWC 231

In this case it was found that when an employee is dealing with vulnerable clients, it may be reasonable for an employer to safeguard its clients and community-care employees against health risks such as influenza transmission. Therefore, the policy mandating influenza vaccinations for all client-facing roles. It mentioned that the following factors are critical:

  • the vulnerabilities and age of the employer’s clients (including propensity to fall ill);
  • the effects on those clients of contracting influenza;
  •  current medical advice regarding the employee involved; and
  • the details of whether the employee was genuinely unable to receive the vaccine due to a medical condition.

Lavan Comment

There is no clear guidance of when mandating influenza vaccines is a lawful and reasonable direction. However, despite this the Commission has recently given the green light to a number of mandatory influenza vaccination policies, finding that they were reasonable.

Where mandatory government directions apply, company policies or practices requiring influenza vaccinations will be lawful and reasonable as employees are unable to carry out inherent requirements of their role. Such policies or practices should be reviewed where government directions no longer apply.

Where no mandatory government directions apply, company policies or practices mandating influenza vaccinations must be lawful and reasonable to be valid. This will depend on individual facts and circumstances, including the industry in which the employer operates, the nature of the workforce, employer work health and safety obligations and the level of contact or face-to-face interaction with clients by employees as part of their duties. The wording of policies should be carefully crafted to ensure employers policies are lawful and reasonable.

If you would like more information about influenza vaccination policy, please do not hesitate to contact Lavan’s Employment, Safety and Education team.