No jab, no pay?
We’re all familiar with the old “no hat, no play” policy that schools have. I used to hate wearing my stupid school hat, but it was that or stay in the shade. These days, the kids are so used to it they just whack their hats on no questions asked.
The policy many people are now grappling with is the edict many employers are now making – “no jab, no pay” i.e. get your COVID vaccine or don’t work here.
There is no doubt COVID19 has wreaked global economic havoc, and it is a relief to see an end in sight. As at the time of writing this article, around 95% of Canberrans have received at least one dose of a vaccine and around 75% are fully vaccinated. However, some people are resistant to obtaining a vaccination or just don’t want to comply with an employer’s direction that they have to do so.
The essential elements of an employment contract are fairly basic. An employee agrees to adhere to the employer’s directions and in exchange the employer agrees to pay them wages. To be binding, an employer’s direction must be lawful and reasonable.
A direction is lawful if it is consistent with the employment contract and is not prohibited by some other instrument such as a modern Award, enterprise agreement, or statute including anti-discrimination laws.
Whether a direction is reasonable depends on the nature of the work, the circumstances of the workplace and the terms of the contract and any award or industrial instrument. A direction does not need to be perfect to be reasonable.
As far as vaccinations are concerned, a Court is likely to place weight on the fact that if an employee contracts COVID-19 during the course of their duties the resultant injury may attract workers compensation payments. Safe Work Australia reported that as at December 2020, around 1,222 claims for workers compensation arising from COVID-19 had been made nationally.
Some awards of compensation can be significant. In Sara v G & S Sara Pty Ltd  NSWPIC 286, the New South Wales Personal Injury Commission awarded the estate of a deceased employee $834,200.00. As vaccinations decrease the risk of severe symptoms, including fatalities, arising from COVID-19 and the severity of symptoms indirectly affects premiums it is likely a direction will be found to be reasonable.
Generally, a direction requiring an employee to obtain a vaccination will not be inconsistent with a well drafted employment contract. Modern Awards do not concern themselves with such matters.
In our view, the only area which provides scope for a dispute is if an employee suffers from a medical condition or disability which attracts the protection of the Disability Discrimination Act 1992 (Cth) (“the DDA”), or similar state-based statutes. To be specific, an employee would need to be able to demonstrate they suffer a specific illness or disability which precludes them from vaccination.
If the employee has a disability within the narrow definition provided by the DDA, they may be able to assert a general direction that employees obtain a vaccination is a form of indirect discrimination. Such a claim is actionable and requires an application to the Australian Human Rights Commission.
An employee seeking to advance either of these arguments would be well advised to obtain persuasive and detailed medical evidence before choosing this as the battle they wish to fight. Frequently, employees submit bland doctor’s certificates which do not specify the precise illness in issue. Whilst that may suffice for an application for personal leave, it is unlikely to dissuade an employer from terminating employment.
Whether you are an employee who suffers an illness which precludes vaccination, or an employer seeking to implement a policy requiring vaccination if in doubt, it’s worth getting some proper advice. Contact our employment law experts on (02) 6279 4200 or email@example.com