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Latest Cases on COVID-19 Measures: Guidance for Employers

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In response to the outbreak of COVID-19, governments in the various states and territories of Australia have enacted public health orders to minimise the risk of further transmission of the virus. Following the making of these public health orders, employers have responded with various policies and requirements for their workforce, such as organising working from home arrangements, requiring masks to be worn within the workplace and stipulating that only fully vaccinated employees can enter the workplace.

Whilst the vast majority of citizens have complied with the health orders and their employer’s requirements, questions have been raised concerning the validity of the public health orders enacted by governments and whether the directions made by employers are lawful and reasonable in the particular circumstances.

These questions have been answered recently within four separate judgments, dealing with the validity of the NSW government’s public health orders, whether employers have the ability to enforce mandatory COVID-19 vaccinations and whether employees can be required to wear a mask in the workplace. Each of these cases will be considered below.

Were the Public Health Orders Valid?

The New South Wales Supreme Court has published the highly anticipated judgment of Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320. This case saw the plaintiffs challenge the validity of public health orders made by the Minister for Health and Medical Research, Bradley Hazzard, under section 7(2) of the Public Health Act 2010 (NSW) (the “PHA“).

These challenges focused on the orders which prevented authorised workers from leaving an affected area of concern, and prevented some people from working in the construction, aged care and education industries, unless they had been vaccinated against COVID-19.

While multiple grounds were raised by the plaintiffs, the fundamental challenge concerned the impact of the orders on the rights and freedoms of individuals who choose to not be vaccinated, particularly concerning their ‘freedom’ or ‘right’ to their own bodily integrity which was infringed by orders forcing them to be vaccinated against their will. Further, it was argued that such an order was not authorised to be made under s 7(2) of the PHA, with this section not authorising orders or directions that interfered with these rights, or that the orders were otherwise unreasonable because of their effect on these rights.

The Court found that the orders do not force a vaccine to be given to somebody who does not wish to be vaccinated. The orders do not infringe upon the right of bodily integrity, and do not authorise an ‘assault’ on an individual who does not want to receive the vaccine. The following passage from the judgment is of importance (at [9]):

The proper analysis is that the… orders curtail freedom of movement which in turn affects a person’s ability to work (and socialise). So far as the right to bodily integrity is concerned, it is not violated as the… orders do not authorise the involuntary vaccination of anyone. So far as the impairment of freedom of movement is concerned, the degree of impairment differs depending on whether a person is vaccinated or unvaccinated. Curtailing the free movement of persons including their movement to and at work are the very type of restrictions that the PHA clearly authorises.”

In finding that the orders were valid, the Court noted that orders made under the PHA which restricted an individual’s freedom of movement on arbitrary grounds, such as race or gender, “would be at a severe risk of being held to be invalid as unreasonable”. The Court held that treating people differently due to their vaccination status was not an arbitrary ground, and was considered to be consistent with the objects of the PHA – namely, protecting and controlling risks to public health, and preventing the spread of infectious diseases (see section 3 of the PHA).

Ultimately, the proceedings were dismissed, with the Court upholding the validity of the orders.

Can employees be required to have the COVID-19 vaccination?

Given the response by the Australian Government and the push for vaccinations against COVID-19, employers may determine that in order to effectively control the risk of infection, it will require its workforce to be vaccinated before attending the workplace. While some employees will consider this a reasonable response given the highly infectious and contagious nature of the virus, not all employees will agree with this position should it be adopted by their employer.

This was seen recently in Queensland, where the Queensland Industrial Relations Commission was required to consider a direction issued by the Queensland Police Commissioner that all police officers be vaccinated.

In Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356, police officers argued that the direction was inconsistent with the State’s Police Service Administration Act 1990 (Qld) and therefore had no effect, or alternatively that it was outside of the Police Commissioner’s power as it intended to vary the terms and conditions of their employment. Further, the police officers argued that the Police Commissioner did not consult them on the vaccination mandate.

In determining the case, the Commission found that it had been established that proper consultation had occurred between staff and unions, with evidence showing that each employee received various documents by email that explained the Police Commissioner’s intentions regarding the mandate. Further, evidence showed that agreement was reached with 5 unions regarding the direction, with each applicant in this case being a member of a union at the time the direction was given.

In considering whether the Police Commissioner had the power to issue the vaccination direction, it was found that a ‘direction given to an employee does not, without more, become a term or condition of employment’. Provided that the direction is within the scope of employment and is not contrary to the employment contract or any applicable award or enterprise agreement, the direction must be followed where the direction is reasonable and does not involve illegality.

This case is important for employers considering implementing a mandatory vaccination policy for their workforce, as it demonstrates the importance of consulting with employees prior to implementing the policy/mandate.

While not dealing with the COVID-19 vaccine, the Fair Work Commission has held that the dismissal of a receptionist, who worked in an aged care residential facility and refused to comply with a mandatory influenza vaccination policy, was fair as the vaccination against the flu was an inherent requirement of her role. In Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818 (“Kimber“), the employer relied on NSW public health orders that were in force at the time which prohibited persons from entering an aged care facility without an up-to-date influenza vaccine (this order was held to be a valid order as discussed above). This meant that the employee could not lawfully enter her place of work unless she was vaccinated and therefore could not perform her role. The decision of the Fair Work Commission was upheld on appeal to the Full Bench, with the Full Bench finding that Ms Kimber did not have a valid medical contraindication such as to provide her with a valid exemption from the order. In commenting on whether the appeal was in the public interest, the Majority said:

We consider that the public interest weighs entirely against the grant of permission to appeal. We do not intend, in the circumstances of the current pandemic, to give any encouragement to a spurious objection to a lawful workplace vaccination requirement.

Kimber demonstrates that should the COVID-19 vaccine be an inherent requirement of an employee’s role, the refusal to be vaccinated can be a valid reason for dismissal, however employers will need to consider whether the employee has a valid medical contraindication.

Can Employees Be Required to Wear a Mask?

One control method that employers may utilise, in addition to, or as alternative to vaccinations, to protect their employees from the spread of COVID-19 is a requirement that employees wear face masks within the workplace. However, similar to resistance that employers can face to vaccine mandates, it may be argued that mask mandates are unlawful, with employers not having the right to impose this requirement on employees.

This was the case in Watson v National Jet Systems Ltd [2021] FWC 6182, with the Fair Work Commission recently considering whether the employer, National Jet Systems (part of the Qantas Group) had, through mandating face masks within its workforce, constructively dismissed one of its flight attendants who argued she was forced to resign.

The Qantas Group required that masks be worn by its staff before public health directions to this effect had been made. The employee applied for a medical exemption from the mask-wearing mandate, with the medical certificate she provided indicating that masks made her ‘extremely anxious’. Despite evidence from her GP stating that she had ‘no medical condition of note’, he considered that the employee ‘has trouble performing her job safely’, with his advice and opinion being that she should not be required to wear a mask at work.

Qantas denied the medical exemption, not accepting that the employee suffered a medical condition that made wearing masks unsafe. Qantas allowed the employee to wear a face shield, however the employee continued to work with no face mask or shield, which resulted in a customer complaint.

In attempting to resolve the issue, the employee disclosed to Qantas that she had Hashimoto’s Disease and a benign frontal lobe tumour. Following this disclosure, Qantas declared the employee as being temporarily unfit for flying duties and arranged for an independent medical examiner to find out whether she could perform her role safely. Qantas offered the employee perform ‘non-safety critical duties’ in the meantime. The employee refused to attend the medical appointment or perform the alternative duties, following which Qantas directed her to return to flying duties and comply with the mask or shield requirement, warning that it might otherwise dismiss her.

The employee’s lawyer argued that the employment contract did not allow Qantas to mandate face masks ‘without her fully informed consent’ and that it ‘amounts to a substantive variation’ of its terms. The flight attendant also accused Qantas of discriminating against her because of her medical condition.

The Commission found that the mask mandate imposed by Qantas was a lawful and reasonable direction in the context of the COVID-19 pandemic. Due to Qantas providing the employee with options, such as attending work as directed or having an independent medical examination, the Commission found that the attendant had simply chosen not to do either of those things, and instead chose to resign from her employment.

This case indicates that when returning employees to the workplace, employers may be entitled to require employees to wear masks should they determine this is necessary to discharge its work, health and safety obligations unless the employee has a valid medical exemption. 

Where to from here?

Given the rapidly evolving circumstances surrounding COVID-19 and the easing of restrictions within the community, it is likely that more cases will make their way before the courts concerning the health and safety measures implemented by employers to ensure the safety of their workforce. For now, employers can take some comfort in the recent case law discussed above which indicates that vaccine and mask mandates can be lawful and reasonable directions where necessary for an employer to discharge its work health and safety obligations to minimise the risk of exposure to COVID-19 as far as reasonably practicable.

However, it is important that employers, if imposing these conditions on employees, consult with the workforce and consider whether these directions are reasonable in the circumstances. Employers should also have an exemption process for any valid medical conditions, and consider if there are alternative PPE or working arrangements available to prevent claims of discrimination.

Should you wish to obtain specific legal advice, the Employment group at McCabes Lawyers are available to assist employers with this developing area of the law.

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