Compulsory Vaccination for COVID-19
Many employers have either introduced or are planning to introduce a compulsory vaccination policy.
A common term of such a policy is that an employee is unable to enter their employer’s workplace unless they have been vaccinated (either ‘one jab’ or fully) against COVID-19.
The Prime Minister, Scott Morrison, was asked by a Melbourne radio host earlier this month if he supported such an approach.
In response, the Prime Minister said that “businesses have the right to say who can come on their premises…And that doesn’t fall foul of discrimination laws”.
The ABC did a Fact Check on the Prime Minister’s statement, concluding that it was “not the full story”.
Experts referred to by the ABC in its post suggested that difficulties may arise in applying a compulsory vaccination policy to the following situations:
- An employee unable to be vaccinated for medical reasons.
- A minor who is not currently able to be vaccinated.
- An employee who has not yet had fair access to vaccination.
We discuss the issue of medical exemptions under a compulsory vaccination policy below.
The Fair Work Commission’s approach towards medical exemptions to compulsory vaccination
Last month, the full bench of the FWC dealt with an application brought by Ms Kimber against her employer, Sapphire Coast Community Aged Care, after she was dismissed for her failure to comply with its requirement that she be vaccinated against influenza.
Ms Kimber relied on a medical exemption form completed by her GP to avoid her employer’s compulsory vaccination policy.
Her position was that she was medically exempt from the requirement to be vaccinated because she had suffered from severe facial swelling and a rash for ten months following an earlier vaccination.
A key issue for the full bench of the FWC was whether the adverse reaction experienced by Ms Kimber was an accepted medical contraindication which, if established, would result in the dismissal being unfair.
Ms Kimber relied upon an Influenza Vaccine Medical Contraindication form completed by her GP in support of her position.
She argued that this form alone was sufficient by itself to make the vaccination requirement inapplicable to her such that she was entitled to an exemption from the requirement.
A majority of the FWC carefully considered the Influenza Vaccine Medical Contraindication form holding that:
“exemption from a vaccination requirement operates only where a medical practitioner certifies that the relevant person actually has what is, in objective terms, a medical contraindication to the vaccination. It plainly is not the case that the mere completion of the approved form on the basis of the identification of an alleged medical condition or episode that is not, in fact a medical contraindication is sufficient.”
Sapphire Coast Community Aged Care relied upon expert evidence from Professor Wakefield that Ms Kimber’s described reaction to the earlier vaccination was most probably chronic dermatitis unrelated to the vaccine.
The majority of the full bench of the FWC also discussed the very few accepted contraindications to influenza vaccination and indicated that the major contraindications are:
- Documented anaphylactic reactions to the vaccine or a component of the vaccine.
- A history of having Guillain-Barre syndrome within a six-week period of receiving the vaccine; or
- Patients who are being treated with “check point inhibitors” as part of cancer therapy.
The Australian Immunisation Handbook, published by the Department of Health, was also referred to by the majority in their judgment. It provides “clinical guidelines for healthcare professionals and others about using vaccines safely and effectively” based on “the best scientific evidence available, from published and unpublished literature”.
Importantly the Handbook discusses what constitutes an “adverse event following immunisation” (AEFI) and provides that serious AEFI’s are rare and it is even rarer that a vaccine causes an AEFI and that, in fact, in many cases, AEFI’s are simply coincidental. Further, the Handbook states that there is strong epidemiological evidence indicating that there is no causal association between vaccination and many diseases or conditions that have been suggested to relate to vaccines.
In summary, the FWC found that Ms Kimber was not unfairly dismissed as the medical evidence did not provide sufficient support for an exemption to the compulsory vaccination requirement of her employer.
Employers planning to introduce a compulsory COVID-19 vaccination policy will need to consider the need for exemptions, including where an employee is unable to be vaccinated for medical reasons.
The full bench FWC decision of Sapphire Coast Community Aged Care will provide employers with the comfort that an employee cannot simply have their friendly GP complete a medical exemption form to avoid the need to comply with a compulsory COVID-19 vaccination policy.
If you require assistance to prepare your compulsory vaccination policy or in assessing an exemption application for medical reasons, please get in touch with one of our employment law experts.
ABC Fact Check posted 6 October 2021.
In Jennifer Kimber v Sapphire Coast Community Aged Care Ltd  FWCFB 6015 (27 September 2021).