Has the recent FWC decision regarding flu vaccinations just changed the position regarding COVID vaccinations?

The short answer is still “no”.

Despite a decision of FWC (Kimber v Sapphire Coast Community Aged Care – 29 April 2021) determining the sacking of an aged care receptionist who refused a flu vaccination on the basis of a previous allergic reaction was fair, we still consider the continuing position is that employers cannot force employees to have a COVID-19 vaccination. . . unless there is a specific ‘No jab - No work’ Public Health Order (issued in your State).

We understand that there has been some of commentary arguing this decision does change the position regarding COVID-19 vaccinations. However, we consider that there are some unique factors in this case which are likely to be distinguished with a ‘broad brushed’ overturning of the clear Safe Work Australia and FWO guidelines to the contrary – both of which have continued to argue against a ‘blanket requirement’ for COVID-19 vaccinations. The specific issues in this case are that:

1. it involved an aged care worker in a high care facility;

2. the was flu shot which was widely available and a NSW public health order requirement; and

3. the GP diagnosis was 14 months after the employees alleged allergic response to the previous flu shot

Earlier in another FWC decision (Barber v Goodstart Early Learning – 20 April 2021) it was also held that an employer fairly terminated a child care worker for much the same reasons. In particular the employee was unable to obtain a medical certificate from the various practitioners she had visited in relation to her medical requirement not to be vaccinated.

Accordingly, we continue to recommend that employers:

1. engage in early and regular consultation with their employees to gain genuine consent for any proposed COVID-19 vaccination program;

2. conduct detailed medically based assessment of any objections; and

3. pre-prepare and test reasonable accommodations now.