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Case Summary

Can you mandate vaccinations for employees in aged care?

Jen­nifer Kim­ber v Sap­phire Coast Com­mu­ni­ty Aged Care Ltd [2021FWC 1818

All employers have obligations under State and Territory occupational health and safety laws to provide a safe workplace that can underpin a lawful and reasonable direction. Any direction mandating a vaccine (whether it is the flu shot or a COVID-19 vaccine) will be lawful and reasonable because it is necessary to comply with safety law. This will not be applicable to all employers but will be defensible for any high-risk industries such as quarantine and border workers, childcare, aviation, aged care, and meat workers.

Nina Hoang
Published:

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  • In 2020 Sapphire Coast Community Aged Care (SCCAC) had implemented a mandatory vaccine policy due to the COVID-19 pandemic.
  • At the time, the NSW Public Health Orders mandated everyone entering an aged care home had to have “an up-to-date vaccination against influenza if the vaccination is available to the person.”
  • Further aged care operators had to “take all reasonable steps” to ensure unvaccinated persons did not enter the centres.
  • Before 2020 SCCAC offered free annual flu shot programs, but these became compulsory for employees in 2020.
  • All employees were informed they were required to be vaccinated unless there was a medical exemption and the only permitted contraindications from the flu vaccine were anaphylaxis in line with the Australian Immunisation Handbook. They were required to provide written evidence of the medical exemption.
  • Ms Kimber refused to have the flu shot because, following a vaccine in 2016, she had developed a severe skin inflammation over parts of her body, an intense burning sensation, and she alleged her internal organs were affected for roughly 10 months.
  • She provided letters of support from two doctors who agreed she should not get the vaccine, however, they were unable to provide direct evidence that she had suffered those reactions (as they had not examined her in 2016), other than through hearsay.
  • As she continued to refuse the vaccine, she was stood down and then terminated through a show cause process for failing to comply with a lawful and reasonable direction and being unable to perform the inherent requirements of her role.
  • Unsurprisingly, the Fair Work Commission held the directions were lawful and reasonable (though noted SCCAC had failed to issue a direction) as it complied with obligations under the NSW public health orders, and it was what was required to allow her to attend work and perform her role.
  • Ms Kimber’s lack of medical evidence supporting her adverse reaction to the flu shot meant her termination was not harsh or unjust. At the time of the alleged reaction, she had not presented to any medical practitioners for inspection or even notified her employer. Finally, an immunologist conclusively determined the adverse reaction could not have originated from the vaccine.

Read the full court decision here.

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Lessons for Employers

  • Ensure you have a reasonable vaccination policy in place that provides reasonable exceptions such as on medical and religious grounds
  • Undertake risk assessment processes before implementing a policy to ensure mandatory vaccinations are necessary
  • Issue firm and clear written directions to ensure any vaccine policies can be enforced
  • Have controls in place as to how you will protect unvaccinated employees to comply with safety obligations

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Managing Principal - Victoria

Principal Lawyer and Head of Workplace