In April this year the Fair Work Commission (FWC) affirmed a childcare employer’s decision to dismiss an employee for refusing to comply with a requirement to receive a flu vaccination. See https://bit.ly/3fGN2Ec.
Obviously, with COVID-19 vaccinations being rolled out, this is a matter of significant concern for IEUA members and their employers.
The employee had been employed by Goodstart Early Learning since 2006, initially as a lead educator, later as a director, and finally as a group leader of an early learning centre.
In April 2020, following recommendations by a relevant health body, and a process of consultation about its proposed influenza response, Goodstart introduced a policy requiring its employees to be vaccinated for influenza.
Importantly, Goodstart’s policy was found to allow for medical exemptions if it was unsafe for an employee to be vaccinated. The FWC also found that Goodstart covered the expenses associated with gathering any medical evidence required and had provided extended timeframes to enable the employee to gain compliance.
The employee initially provided a medical certificate stating that she had ‘a sensitive immune system’, a history of chronic auto immune disease and Coeliac disease and that she ‘reports having reacted quite badly to the flu vaccination’. The employee was notified that this certificate did not meet the requirements for exemption as it did not clearly indicate whether it was unsafe for the employee to receive the vaccination.
The FWC decision suggests that the employee was given nine opportunities over a three-month period to provide information capable of satisfying Goodstart that she was medically unsuitable for an influenza vaccination. By her own account, multiple doctors refused to provide the employee with a statement that she should be exempt from vaccination.
The FWC found that Goodstart’s decision to implement a policy of mandatory vaccination:
- related to a childcare environment where risks and concerns are distinct, involving children who are by nature more vulnerable and have poor hygiene standards, making viral spread easier and potentially more dangerous
- followed an assessment of risk to both children and employees, and consideration that was given to alternative methodologies and approaches
- acknowledged varying degrees of effectiveness of immunisation, but identified any reduction in the transmission and contraction of influenza as being a positive factor
- involved a broad communication strategy to inform employees of the need to be vaccinated
- anticipated that there may be medical grounds for the vaccination to be unsafe, and provided for medical exemptions, and
- established a process for obtaining medical exemptions which was managed by a panel of senior staff.