No jab, no job: mandating workplace COVID-19 vaccinations in the current legal landscape
Since the beginning of the pandemic, Australia has had over 180,000 total cases of COVID-19 and over 44.5 million tests. As at 7 November 2021, more than 80% of the population aged 16 and over (or over 16 million people) have been fully vaccinated.
As Australia moves toward a ‘living with COVID-19’ approach rather than the previous goal of ‘COVID-19 zero’, employers are asking whether it is legal to make the COVID-19 vaccination mandatory in businesses other than those in high-risk industries identified by governments. There are clear mandates for the health and aged care industries, and the Fair Work Commission has upheld the dismissal of an unvaccinated employee for failing to comply with a government vaccine mandate. However, there are varying vaccine mandates across different industries and geographically across Australia, providing employers with a challenge in navigating this difficult and constantly changing landscape.
Until recently SPC, an Australian based food packer, was leading the way as the first Australian company to mandate COVID-19 vaccinations for staff and visitors to their premises by November 2021. Since that time, and due to the extensive havoc caused by the spread of the Delta and Omicron variants, companies across a range of industries have mandated the vaccination for their workers. BHP Coal’s vaccine mandate has been challenged by unions, with the resulting decisions providing incredibly useful guidance for organisations seeking – by imposing mandatory vaccination rules – to protect the health and safety of their workforce and ensure the continuity of their business operations in the absence of an applicable public health order.
With the COVID-19 roadmaps leading to greater freedoms, reduced lockdowns and the return of domestic and international travel, employers need to consider now more than ever what steps they are willing to take to protect their workforce and the public.
We think so but, to date, you won’t find a nationally consistent position.
Thankfully, some state and territory governments have been taking the lead, imposing mandatory vaccination requirements in various industries and sectors of the economy. A recent example is the ‘Public Health and Social Measures linked to vaccination status’ announced by the Queensland Government on 9 November 2021, applicable across a broad range of business settings in Queensland.
Even so, for employers trying to conduct business in multiple Australian jurisdictions, a position of minimum/passive compliance on the vaccination issue will result in different workplace rules and requirements in different jurisdictions, ever changing according to the uncoordinated actions of the relevant state and territory governments.
Absent an applicable public health order, most employers in most situations will be able (at least at the current stage of the pandemic) to justify a mandatory vaccination policy, as required by workplace health and safety laws (WHS) which require the risk of exposure to COVID-19 (which can cause serious illness or death) of both workers and others impacted by the employer’s business operations, to be eliminated or minimised so far as is reasonably practicable.
The position taken by the National Cabinet and the various government bodies with a relevant remit is quite a way back from this.
Most are impracticably vague.
National Cabinet has stated that in general, in the absence of state or territory public health order or a requirement in an employment contract or industrial instrument, an employer can only mandate that an employee be vaccinated through a lawful and reasonable direction. The Federal Government’s stance remains that vaccines (including COVID-19 vaccines) should be voluntary and free, and the Prime Minister has stated that ultimately employers need to consider these issues and make their own decisions appropriate to their workplace.
Employees have a duty to comply with a direction issued by their employer, as long as it is ‘lawful and reasonable’.
For a direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies (for example, an anti-discrimination law). Determining if a direction is reasonable is far more subjective and will rely on the specific industry and the employee’s role within the organisation, which is assessed on a case-by-case basis.
To restate our position, we think that in most circumstances most employers will presently be able to justify, as both lawful and reasonable, a direction to their personnel to vaccinate - with a potential exception for people able effectively to work from home.
The Fair Work Ombudsman’s (FWO) contribution to the reasonableness issue is to describe a tiered system which categorises workers according to various levels of risk. Implicit in the concept are the management of two risk aspects – the risk that a direction to vaccinate will not be reasonable and thus unenforceable, and, the health risks associated with infection, as follows:
Tier 1 work: where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).
Tier 2 work: where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).
Tier 3 work: where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, shops providing essential goods and services).
Tier 4 work: where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).
In presenting this analysis the FWO unhelpfully points out that a workplace may have a mix of employees, with different employees performing work in different tiers, all of which could change over time. The guidance is to the effect that employers must, simultaneously:
According to the FWO, for workers within tiers one and two, a direction to vaccinate is more likely to be reasonable, as long as it complies with anti-discrimination laws. For workers performing tier four work, such a direction would be unlikely to be reasonable given the limited risk of transmission. For workers performing tier three work:
The FWO has set out a range of factors to take into consideration when determining whether a direction to an employee is reasonable including:
Whilst the guidance from the FWO means it may be easier to justify mandatory vaccinations for those workers with public-facing roles or in areas with community transmission, the outbreak of the Delta variant and the Federal Government’s roadmap toward opening the domestic and international borders provides a further basis for expanding what is reasonable. Earlier in the pandemic, mandatory vaccinations for front-line healthcare and aged care workers and those working in close proximity with quarantined individuals may only have been considered to be ‘lawful and reasonable’. However, as the pandemic progresses and Australia moves towards opening up to live with COVID-19, employers in states/territories and industries that are not affected by vaccine mandates are likely to have strong grounds to assert that a direction to their personnel to vaccinate for COVID-19 is both lawful and, frankly, entirely reasonable.
The union movement, by and large, takes a different view.
ACTU Secretary Sally McManus told ABC News Breakfast on 13 August 2021 that the FWO’s advice meant “that the only employers who can mandate vaccinations are those where there’s a public health order”. The Maritime Union in Queensland is advising its members in Queensland to refuse to show proof of COVID-19 vaccination to their employers and is resisting the introduction of mandatory vaccination on the Queensland waterfront. The communications union is seeking to push back on Telstra’s plans to make vaccinations compulsory for more than 8,000 public facing employees. And the mining union is challenging the rollout by BHP of a mandatory vaccination policy at the Mount Arthur coal mine in the NSW Hunter Valley.
In contrast, five unions with employees in the Queensland Police Service (QPS) all agreed with a proposal by the Queensland Commissioner of Police – since given effect – to mandate COVID-19 vaccination across the QPS workforce.
While the debate rages, the virus continues to cause serious illness and death. Vaccinations – now readily available – for most people in the workplace context are an obvious, expedient, safe and free safeguard.
At the time of writing (early November 2021) the case law about whether employers might lawfully and reasonably impose a mandatory requirement for their workers to submit to vaccination for COVID-19 is limited. However, there are some recent decisions pointing solidly in that direction. For example:
More litigation is on foot. We expect a rush in coming weeks and months.
Recent decisions from the Fair Work Commission relating to compulsory influenza vaccinations continue to provide useful guidance on what constitutes a lawful and reasonable direction in the context of the employee’s specific role.
In Arnold v Goodstart Early Learning Limited (decided November 2020), the applicant was a childcare worker who was dismissed for refusing to comply with her employer’s vaccination policy against influenza. Although an exemption could be sought for medical reasons, the applicant did not seek one.
As a result, the FWC found it was "equally arguable" for the employer to require mandatory vaccination as a lawful and reasonable direction given the industry in which the employer operated and the fact that it primarily cared for young children who could not be vaccinated due to their age, or for health reasons. Ultimately, it was concluded that an employer’s duty of care should be balanced with the needs of employees who may have reasonable grounds to decline vaccination. The unfair dismissal claim was dismissed.
In Glover v Ozcare (decided May 2021), the applicant was a care assistant for the respondent, an aged and disability care facility, who refused to receive an influenza vaccine pursuant to the employer’s policy. The applicant believed she had an anaphylactic reaction to an influenza vaccine as a child, however failed to provide supporting medical evidence. Commissioner Jennifer Hunt decided in the employer’s favour, noting: “Ozcare has determined, and I accept, that this is a decision the business considered necessary to take to safeguard its clients and employees as far as it is practicable to do so.”
The Commissioner acknowledged the worker had a right to decline the vaccination, but "Ozcare’s rights, together with its responsibilities to its clients override [her] right to decline the vaccination and remain employed".
In the preliminary hearing for the matter, Commissioner Hunt (in January 2021) made the following observations:
In my view, each circumstance of the person’s role is important to consider, and the workplace in which they work in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction. Refusal of such may result in termination of employment, regardless of the employee’s reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector.
It is not inconceivable that come November 2021, employers of men engaged to play the role of Santa Claus in shopping centres, having photos taken around young children, may be required by their employer to be vaccinated at least against influenza, and if a vaccination for COVID-19 is available, that too. The employer in those scenarios, where they are not mandated to provide social distancing, may decide at their election that vaccinations of their employees are now an inherent requirement of the job. It may be that a court or tribunal is tasked with determining whether the employer’s direction is lawful and reasonable, however in the court of public opinion, it may not be an unreasonable requirement. It may, in fact, be an expectation of a large proportion of the community.
In Barber v Goodstart Early Learning (decided April 2021), the Fair Work Commission upheld the employer’s decision to dismiss a childcare worker who refused to have the flu vaccine. The employer’s policy provided that its employees were required to have the flu vaccine "unless they have a medical condition which makes it unsafe for them to do so". By the worker’s own account, multiple doctors refused to provide her a statement that she should be exempt from vaccination. In this decision, Deputy President Nicholas Lake noted that "guidance surrounding how [COVID-19 vaccinations] will be administered in the workplace is scarce" and that his decision "is relative to the influenza vaccine in a highly particular industry".
In a recent decision of the Full Bench of the FWC in Kimber v Sapphire Coast Community Aged Care Ltd (handed down in September 2021), the FWC rejected the unfair dismissal claim of a worker sacked for refusing a flu shot, in the first COVID-era full bench ruling on vaccine mandates. Ms Kimber was dismissed from her role as an aged care worker for being unable to fulfil the inherent requirements of her roles for objecting to being vaccinated against the flu. Vice President Adam Hatcher and Commissioner Bernie Riordan said they had doubts over Ms Kimber’s claim she previously suffered an allergic reaction to the vaccine, and stated they "do not intend, in the circumstances of the current pandemic, to give any encouragement to a spurious objection to a lawful workplace vaccination requirement".
For a counterview, Commissioner Dean dissented, calling the outcome a “manifest injustice”. Among other things she said that “blanket rules, such as mandating vaccinations for everyone across a whole profession or industry regardless of actual risk, fail the tests of proportionality, necessity and reasonableness”.
This will be cold comfort for any employer who has to manage the consequences of an outbreak in their workplace, including any one of several legal claims that might be made against it based on a failure to do something constructive to prevent it.
Businesses have a legal obligation to keep their workplaces safe and to eliminate or minimise as far as ‘reasonably practicable’ the risk of exposure to COVID-19.
Pursuant to federal and state work health and safety legislation, employers are legally obliged to ensure, so far as reasonably practical, the health and safety of their employees and other persons impacted by their business operations. This obligation is heightened in industries where exposure to COVID-19 is increased, or where they serve vulnerable citizens, such as elderly persons or those with chronic illness. WHS obligations are strict and impose criminal sanctions for failure to discharge relevant duties. However, no Australian safety legislation (specific public health orders aside) deals expressly with the management of pandemic related issues in workplaces, and no Australian safety regulator has published an enforcement position in relation to COVID-19 vaccination issues.
Employers therefore need to consider if imposing a mandatory vaccination requirement is a reasonably practicable way of minimising the risks of a COVID-19 outbreak (and related serious illness or death) in their workplaces. As a starting point, employers might consider whether employees have a low, medium or high exposure to contracting COVID-19 within their workplaces before deciding what measures should be put in place. Whilst social distancing, use of PPE and/or working from home arrangements may be sufficient in many instances, as Australia moves toward the ‘living with COVID-19’ approach, businesses need to consider if they should take that further step in implementing mandatory vaccinations for their personnel.
In most cases, mandating the COVID-19 vaccination for workers is going to be a reasonably practicable way for reducing the workplace risks associated with the virus. However, employers should conduct a risk assessment specific to their business operations, considering the extent to which employees might, in the course of their employment, be exposed to the risk of infection (whether at work or in relation to work-related activities including engagement with third parties, in travel etc) or be at risk of infecting others.
In the development and implementation of a mandatory vaccination policy, employers should consider the justifications for the policy (regarding WHS obligations, applicable public health directives, the ‘essentiality’ of the employer’s business in the community, the potential business impacts of an outbreak amongst the employer’s personnel and so on), which employees will be covered by it, exceptions and what to do in circumstances of non-compliance. It is recommended that the following steps be taken:
If an employer decides to introduce a mandatory COVID-19 vaccination policy, steps can be taken to manage and mitigate any potential legal and practical risks, with emphasis on positive and facilitative messaging and decision-making rather than negative, coercive messaging and employer ultimatums.
Recently, SPC underwent a regulatory investigation in Victoria related to concerns raised with WorkSafe Victoria that they had not properly consulted with staff in accordance with their statutory obligations, prior to making the decision to mandate vaccinations in their workplace. Whilst SPC was not found to have breached any obligations, employers will need to consider and discharge any related consultation obligations. These will at least arise under the applicable WHS legislation if not also under applicable industrial instruments in the nature of awards, enterprise agreements or, potentially, contracts of employment and workplace policies. Unions in particular have been quick to challenge the sufficiency of consultation around the implementation of mandatory vaccination policies, this being a feature of the disputes pending on the Queensland waterfront and at the Mount Arthur coal mine.
Encouraging and then considering employee input (possibly adjusting the direction or the timing of mandatory vaccination), may result in greater uptake of voluntary vaccinations, or less resistance to mandated policies once introduced.
Employers should be wary of Australia’s strict anti-discrimination legislation. Relevant attributes that may be subject to unlawful discrimination include a person’s gender, pregnancy, age, religion, or disability. For example, treating an employee - who cannot be vaccinated due to a serious medical condition – adversely in some way, may constitute unlawful disability discrimination under these laws.
In mandating COVID-19 vaccinations for workers, employers need to consider the inclusion of a confidential exemption or reasonable accommodation process for employees who are unable to receive the vaccine for medical reasons. The grounds for medical exemption (both temporary and permanent) recognised by ATAGI are very limited but, where available and certified by a doctor, will be added to a person’s immunisation history statement.
Whilst many workplaces are not allowing exemptions from mandatory vaccinations for religious reasons (particularly in high-risk industries), allowing a mechanism for employees to seek reasonable accommodations based on sincerely held religious beliefs can assist in mitigating the risk of any unfair dismissal or unlawful discrimination claims arising from those circumstances.
If an employer can prove that receiving the COVID-19 vaccination is an inherent requirement of the job (such as on WHS grounds) and that no reasonable adjustments (which will generally need to be considered) are available to accommodate the circumstances of a worker who cannot or will not take the vaccination, the employer will have good grounds to defend any related unfair dismissal, unlawful discrimination or other adverse action claims.
Are employers entitled to require employee vaccination status information?
Yes, if employees are legitimately the subject of a vaccine mandate, whether this arises under public health order or is imposed by the employer on WHS grounds.
Vaccination status information is sensitive personal information to which specific rules apply under Australian privacy law (with some exceptions for small businesses).
Again, the guidance from the regulator, the Office of the Australian Information Commissioner (OAIC) is not particularly instructive, primarily around the requirement for consent. Generally speaking, sensitive personal information cannot be collected by an employer from a worker (or anyone else) unless the worker consents, such consent being freely given without pressure or intimidation.
Mandatory vaccination policies, by definition, don’t look for individual consent. This is recognised by the various public health orders made by state and territory governments mandating the vaccine. These require, expressly or implicitly, employers to collect details of their workers’ vaccination status as necessary for the employer to comply with the directive. Those situations operate as a clear exception to the requirement for consent, because the collection is required or authorised (or both required and authorised) by law.
What is less clear is the role that ‘consent’ has to play in the case of an employer who, without the benefit of a public health directive, seeks to mandate the vaccine. The guidance from the OAIC is to the effect that where an employer has provided a lawful and reasonable direction for workers to be vaccinated, the employer can ask workers to provide evidence of vaccination, but consent is still required. Arguably, workers who hand over evidence of their vaccination status under threat of potential termination of employment for non-compliance with the employer’s policy, are not actually consenting to the process.
We can’t resolve this, other than to note that a mandatory vaccination policy is unworkable unless it is supported by evidence of workers’ vaccination status. Presumably if workers respond to the policy by producing the required evidence – upon threat of termination of employment if they don’t comply – they can be taken to have consented to the exercise.
An alternative view is that consent isn’t really required if the employer’s policy – including arrangements for the collection and management of evidence of vaccination – is properly ‘required or authorised’ (as in most cases we think it presently will be) under WHS law.
In any event, the collection process is regulated by Australian Privacy Principles 1 and 5, which between them require the employer to give a collection statement before (or as soon as practicable after) collecting evidence of vaccination status, covering the following matters:
The OAIC further states that if information about COVID-19 vaccination status has been collected by employers lawfully, the ‘employee records exemption’ in the Privacy Act will apply in many instances. This means that the APPs will not apply to the handling of employee information once it has been collected, and is held in an employee record, where it is directly related to the employment relationship between employee and employer. Note that the ‘employee records exemption’ does not apply to persons who are not employees eg, contractors or site visitors.
What evidence should be collected?
This might vary depending upon whether the employer is required to comply with an applicable public health order, in which case the order might instruct the employer about the type of evidence to be collected.
Otherwise the evidence should be that which would satisfy a reasonable person as to the worker’s vaccination status, including the details of any medical exemption.
In every case, this will include, either, an individual’s Immunisation History Statement, or the COVID-19 Digital Certificate, both available from Medicare.
One of the controversies in circulation is whether employers should collect evidence of this kind, or, instead, create a separate process for ‘noting’ having seen the primary evidence without collecting it. We have seen one union propose the latter in circumstances where the employer was required to collect evidence of vaccination status under an applicable public heath order.
Unless a specific course is dictated by the specific requirements of an applicable public health order, employers will have a choice about whether they want to collect and retain the primary evidence, or, to create a secondary record.
Our view is that collection of the primary evidence is preferable because:
In all cases employers should, regardless of the ‘employee records exemption’ in the Privacy Act, take reasonable steps to protect these records from misuse, interference and loss, and, destroy or de-identify the records when they are no longer required.
If workers choose not to provide this information following the implementation of a mandatory vaccination policy, employers will have various options open to them according to the circumstances.
Where a public health order applies, these will be limited. Typically the order will preclude the employer from permitting the employee into their workplace, and, preclude the employee from entry, in both cases on pain of a financial penalty. In that and many other situations the employer will, ultimately, be entitled to take disciplinary measures against the employee for failing to comply with a lawful and reasonable direction, or, for an inability to fulfil the inherent requirements of their role.
No one can be forced to receive the vaccine. A recommended step in the management of employees who refuse to be vaccinated or to produce evidence of their vaccination status is to discuss their reasons for doing so. Consider if any alternative arrangements such as working from home or redeployment to another branch of the business, can be taken to ensure they can continue to work safely (and in accordance with any applicable public health order).
If an employee refuses to comply with a direction to vaccinate that is reasonable and lawful or is unable to perform the inherent duties of their role due to being unvaccinated, the employer might ultimately consider dismissal of the employee and be able to justify such a course if challenged. See the discussion above about the case experience to date relating to the flu vaccine.
At the time of writing there are no reported cases dealing generally with disputes between individual workers and their employers arising out of COVID-19 vaccination issues. Whilst it is not possible to eradicate the risks of disputation arising from termination or threatened termination of employment for failing to comply with a mandatory vaccination policy, the above considerations relating to consultation and exemptions for medical and/or religious reasons may assist to reduce the prospect for disputes.
Potentially yes, however employers should firstly consider their obligations and responsibilities carefully, for example, under general protections or anti-discrimination laws, before requiring a prospective employee be vaccinated before starting work.
This means, in many circumstances, there is risk in this requirement, including where the potential employee refuses to engage on the issue. Consideration needs to be given to adding specific terms in contracts of employment to address this issue.
The legal landscape will continue to shift. Employers should strive to keep abreast of ongoing developments in the course of the pandemic; related activity and guidance by governments and regulators, and; relevant court and tribunal decisions - regularly reviewing and adjusting their policy positions to suit as appropriate.
For example, the case for justifying a mandatory vaccination policy in some localities might be diluted as the uptake of vaccinations in particular communities reach higher thresholds. And the ready availability of rapid COVID-19 testing technologies might, in some situations, provide employers with an additional (or alternative) pathway for the management of personnel unwilling or unable to take the vaccination.
Ultimately employers need to take a stance on whether or not they intend to mandate the COVID-19 vaccination in the absence of public health orders. Mandating the COVID-19 vaccination gives rise to various potential disputation and liabilities (including liability for compensation and civil penalties in some instances) which include:
Employers need to balance the risks of potential claims against the cost of not having a vaccinated workforce in terms of WHS obligations and potential business disruption due to outbreaks at worksites.
As already mentioned, we think that most Australian employers, on the cusp of the re-opening of our economy while the virus is still in circulation, are able to enforce a policy for the mandatory vaccination of their workforces and that the related risks are manageable. The situation will continue to evolve and employers should remain vigilant about movements in ‘best practice’, seeking expert advice as necessary.