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No jab, no job? What employers might consider before mandating COVID-19 vaccinations in workplaces

By Andrew Tobin / 13 August 2021
21 min.
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Worthwhile read for: Employers, Employees, Business owners, HR professionals

Key takeaways 

  • Employers can mandate that employees are required to undergo flu vaccinations in certain industries. The same principles may apply to the COVID-19 vaccination, particularly as the threat from the Delta variant of the virus becomes more widespread in Australia. But, the timeframe may not be so immediate, with demand for vaccinations exceeding supply. 

  • Employers might consider developing a clear, fair and effective plan which includes defined steps towards the implementation of the business’ mandatory COVID-19 vaccination policy. This would include inviting and encouraging meaningful consultation with employees and where relevant, unions. Employing positive, facilitative, reward-based messaging, disseminating relevant and up-to-date information prior to implementation of the business’ mandatory COVID-19 vaccination policy might bolster uptake of voluntary vaccinations.

  • Employers might also be mindful of compliance timeframes given to employees, considering that many of their employees may not yet be eligible for vaccination. 

  • If you need further advice specific to your organisation, then please contact our Workplace and Employment team.

COVID-19 vaccinations and the current legal landscape

With the ongoing rollout of the Australian Government’s COVID-19 vaccination program and the increased risk from the highly infectious Delta variant of the virus, employers are asking whether it is legal to make it mandatory for employees to vaccinate in businesses other than in high-risk industries identified by governments. Employers are keenly watching test case SPC, which recently announced a “no COViD-19 jab, no work” rule. SPC will be the first Australian company to mandate COVID-19 vaccinations for staff and visitors by November 2021. Along with other food processing companies,  Qantas, Google, Facebook and Deakin University are also considering mandatory vaccinations.

National Cabinet has already endorsed the decision of the Australian Health Protection Principal Committee to make at least a first dose of a COVID-19 vaccination mandatory for all residential aged care workers by mid-September 2021. There is a public health order in place in Queensland mandating vaccination for hospital service employees, Queensland Ambulance Service employees, hospital and health service contractors, Queensland Health employees in residential aged care facilities operated by Queensland Health (first dose by 16 September) and workers in quarantine facilities. 

Following the National Cabinet meeting on Friday, 6 August 2021, Prime Minister Scott Morrison confirmed Australia's policy remains that vaccines (including COVID-19 vaccines) should be voluntary and free, and that in the absence of specific public health orders, an employer can only mandate that an employee be vaccinated through a lawful and reasonable direction. The Prime Minister said that ultimately employers need to consider these issues and make their own decisions appropriate to their workplace.

The Fair Work Ombudsman (FWO), and Safe Work Australia (SWA), are providing specific guidance about workplace rights and obligations in the context of the COVID-19 pandemic. The official government advice is that there may be situations where it is reasonable for employers to require an employee to be vaccinated. The advice is that any decision to implement mandatory vaccination policies should happen only after employers have fully considered what they can do to firstly encourage and assist employees to become vaccinated. Yesterday, FWO released new guidance including details of a four-tier system to help employers determine whether a mandatory vaccination direction would be considered lawful and reasonable.

Union and employer peak bodies such as the Australian Council of Trade Unions and Business Council of Australia are opposing individual employer mandates, supporting instead public health orders to mandate vaccinations in high-risk industries.

FWO and SWA guidance is subject to change. It is also not law. With the growing ferocity of the current debate, it is possible the government will step in to authorise employer mandates in certain circumstances via amendments to the Fair Work Act (Cth) 2009. 

Summary

In this publication we examine the fast-evolving landscape and the nature of employer risk including claims made by employees who might be adversely affected by the introduction of such policies.

We also consider ways to manage and mitigate risk with an emphasis on positive and facilitative messaging and decision-making, rather than negative, coercive messaging and employer ultimatums. This includes:

  • genuine worker consultation; 
  • early announcement of vaccination policies (including offering vaccination leave and other leave in the event adverse side effects are suffered);
  • utilising relevant resources to disseminate accurate up-to-date information; and 
  • other financial and non-financial incentive offerings to staff. 

At a time when vaccine demand currently exceeds supply and priority groups fluctuate, mandatory vaccination policies introduced quickly, in isolation, may hurt employers. SPC employees speak of being “steam rolled” and the younger staff voice concerns they are currently ineligible for Pfizer. 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 might also consider the position of vulnerable employees before imposing any blanket policies which may also breach federal or state privacy, discrimination or human rights laws. Employees with disabilities or medical conditions, pregnant employees and visa holders, may have difficulty readily accessing vaccinations even if they are eligible. Even if COVID-19 mandates are lawful, facilitative measures could be worth introducing initially. Companies such as Wesfarmers, NAB and Commonwealth Bank of Australia are considering carrots rather than sticks to encourage vaccinations, and local tech firms are providing paid leave to employees who receive the jab.


Do you need help with your COVID-19 vaccination policies? 

Contact us to see if one of our model policies suits your needs.


FAQ’s 

Is it lawful for employers to introduce and enforce mandatory vaccinations? 

Not really, except in specific industries. As per National Cabinet on 6 August 2021: “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 Australian Government’s policy is that vaccination against COVID-19 is voluntary, yet strongly encourages Australians to be vaccinated. At present, the National Cabinet’s target vaccination rate is at 70% to 80%.

Following the National Cabinet meeting on 6 August 2021, the FWO and SWA have provided specific guidance on this issue stating that in some circumstances it may be reasonable for an employer to require an employee to receive the vaccination as a condition of employment. Factors to assist in determining the appropriateness of this include the nature of the employer’s industry, how this would impact the employee’s work, work health and safety obligations, the lawfulness and reasonableness of the employer’s directions and any public health orders from government bodies. 

Health and safety requirements 

On 6 August 2021 National Cabinet also noted that 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 (WHS) legislation, employers are legally obliged to ensure, so far as reasonably practical, the health and safety of their employees and other persons at the workplace. 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. Due to variants such as the Delta strain playing havoc in recent weeks, the sufficiency of existing measures (social distancing and working from home arrangements) are being questioned. 

As a starting point, employers might consider where their business fits within the matrix of industries where employees have either a low, medium or high exposure to contracting COVID-19 within their workplaces, before deciding what measures should be put in place. Industries employing staff with high exposure to contracting COVID-19 in the workplace would be on reasonably safe grounds implementing mandatory vaccinations in the absence of a public health order.

"Lawful and reasonable" directions

Employees have a duty to comply with a direction issued by their employer, as long as it is ‘lawful and reasonable’. 

However, what may be considered "lawful and reasonable" will rely largely on the specific industry and the employee’s role. For example, it may be difficult to justify mandatory vaccination for low risk industries, such as those with office-based jobs. SPC, a business that produces canned goods, is currently testing this proposition and others will follow.

Until yesterday, the FWO clearly stated that the general rule for the majority of employers, is to assume they can’t require mandatory vaccinations of employees.

On Thursday, 12 August 2021, FWO released an update on this issue. FWO has released a four-tier system to advise employers on whether a mandatory vaccination direction would be considered reasonable. The tiers are 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, stores providing essential goods and services).
  • 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 examples, stores 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).

Importantly, FWO says that a workplace may have a mix of employees, with different employees performing work in difference tiers, all of which could change over time. 

For workers within tiers one and two, it 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 unlikely be reasonable given the limited risk of transmission. For workers performing tier three work:

  • where no community transmission of coronavirus has occurred for some time in the area where the employer is located, a direction to employees to be vaccinated is in most cases less likely to be reasonable; and 
  • where community transmission of coronavirus is occurring in an area, and an employer is operating a workplace in that area that needs to remain open despite a lockdown, a direction to employees to receive a vaccination is likely to be more reasonable.

Yesterday the FWO set out a range of factors to take into consideration when determining whether a direction to an employee is reasonable including:

  • the nature of each workplace (for example, the extent to which employees need to work in public facing roles, whether social distancing is possible and whether the business is providing an essential service);
  • the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community;
  • the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant (find out more at the Department of Health: statement from ATAGI);
  • work health and safety obligations (find out more at SWA);
  • each employee’s circumstances, including their duties and the risks associated with their work; 
  • whether employees have a legitimate reason for not being vaccinated (for example, a medical reason); and
  • vaccine availability.

Determining what constitutes a ‘lawful and reasonable’ direction is an imprecise exercise. It requires careful weighing up of individual circumstances and risks, assessed on a case-by-case basis.

What is reasonable also depends on the impact of the pandemic on the particular business at the particular stage of the pandemic. 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". The recent flare-ups of the pandemic will likely provide a sound basis to expand the reach. 

Recent cases — only in relation to influenza vaccinations

Whether a mandatory vaccination for COVID-19 is a lawful and reasonable direction has not yet been tested by the courts or the FWC. 

Recent decisions from the FWC relating to compulsory influenza vaccinations may provide some clarity on what constitutes a lawful and reasonable direction in the context of the employee’s specific role. 

Firstly, in Ms. Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning (decided November 2020)1, 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)2, 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.3

In Ms. Bou-Jamie Barber v Goodstart Early Learning (decided April 2021)4,  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".

Whilst guidance can therefore be taken from the way the FWC has treated mandatory influenza vaccinations, employers should turn their mind to the circumstances of employment before attempting to mandate COVID-19 vaccines. 

How should a mandatory vaccination policy be implemented in the workplace?

Should an employer decide that a COVID-19 vaccination regime is necessary for the safety of its workplace, it is recommended that the following minimal steps be taken:

  • draft a policy on the intended vaccination regime, outlining clearly which roles are required to have the vaccination, on which basis exemptions may be provided, and any evidentiary documentation needed for proof of vaccination; 
  • ensure all affected employees are made aware of the policy; 
  • ensure the consequences that may arise for failure to comply with the policy are clearly communicated; 
  • prepare a strategic management plan to handle instances of non-compliance.
  • consider allowing employees to be vaccinated during work hours; and
  • providing education about the benefits of vaccinations and readily answering any queries or concerns. 

What happens if employees refuse to be vaccinated?

As per the guidance received from the FWO and SWA, the COVID-19 vaccination regime is voluntary, and employees cannot be forced to receive the vaccine. A recommended step in the management of employees who refuse to be vaccinated 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. This is particularly relevant as demand presently exceeds supply of the vaccine. 

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 may consider dismissal of the employee within the dismissal provisions of the Fair Work Act 2009

Employers should be careful not to infringe on Australia’s anti-discrimination or privacy protections in handling an employee who refuses to vaccinate. 

Are employers entitled to request employee vaccination status information? If so, what are employers able to do with this information? Will such information be protected by the Privacy Act? 

These questions relate to privacy issues. Employers may be allowed to ask employees for proof of their vaccination if the employer has provided a reasonable and lawful direction to be vaccinated.

There are three possible ways employers might require employees to produce proof of vaccination:

  1. by way of an Immunisation History Statement (IHS);
  2. by way of a letter from their general practitioner or another health provider verifying the employee has received the vaccination; or
  3. oral or written confirmation of employee (otherwise statutory declaration) without other evidence.

Before embarking on requesting this information of employees, employers should decide which method and stipulate it clearly in their COVID-19 vaccination policy. There are different levels of risk to consider in the decision-making around this. 

For example, there may be significant risks for employers proceeding by way of IHS, given the relevant legislation does not appear presently to provide for this, and that unauthorised use or disclosure of an IHS can have criminal consequences.

What we do know is that COVID-19 vaccination status is considered sensitive information by the Office of the Australian Information Commissioner (OAIC), so it is afforded a higher degree of protection under the Privacy Act 1988 (Cth) and Australian Privacy Principle (APP) 3. 

For the above reasons, it may be prudent for employers to consider specifying either of the latter two options in any COVID-19 vaccination policy. Employers are still required to be transparent about why the information is being collected and how it will be used, in line with APP 1. 

OAIC states that employers must take reasonable steps to notify employees of the matters set out in APP 5 which include:

  • the purpose of collection;
  • the consequences if employees refuse to consent to the collection;
  • if the collection is required or authorised by law;
  • how employers may use or disclose information about vaccination status; and
  • how employees may access their personal information, seek correction of their personal information, make a complaint about a breach of the APPs and how employers will deal with such complaints.

OAIC also states that employers are required to provide employees with this information before they collect information about employee vaccination status, or if this is not practicable, as soon as practicable after collection occurs.

Finally, OAIC 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. The OAIC has developed guidance for private sector employers on privacy best practice when handling information about employee vaccination status. We recommend that employers review this guidance in the development of their vaccination policies.

It will also be prudent for employers to include in any COVID-19 vaccination policy that the employer will only collect, use or disclose the minimum amount of personal information reasonably necessary to maintain a safe workplace, which may include preventing or managing COVID-19. 

Is it discriminatory to require employees to vaccinate against COVID-19, otherwise risk losing their job?

Employers should be wary of Australia’s strict anti-discrimination legislation. Protected factors that may be subject to unlawful discrimination include a person’s gender, age, religion, or disability. For example, discriminating against an employee who cannot be vaccinated due to a serious medical condition may constitute unlawful disability discrimination under these laws. 

If an employer can prove that receiving the COVID-19 vaccination is an inherent requirement of the job (for example, because the workplace involves working with peoeple particlarly vulnerable to infection, such as in aged care ), or that any unreasonable or unfair adjustments may cause the employer to suffer unreasonable hardship, the employer might have a reasonable defence against any unfair dismissal or unlawful discrimination claims.

Can employees refuse to come to work if their work colleagues have not been vaccinated? What about if potential customers are not vaccinated?

Possibly yes, but only in workplaces where there is serious risk. Under section 84 of the Work Health and Safety Act, a worker “may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard.” 

Where, exactly, would employers draw the line?

As per the advice from SWA and the FWA, the COVID-19 vaccination regime, in a vast majority of industries and workplaces, will be a voluntary regime. It is unlikely that in workplaces where there is an absence of policy mandating vaccination, that an employee can refuse to attend if their colleagues or potential customers have not been vaccinated. 

Employers should discuss any concerns posed by the employee before considering further actions. 

Can employers require prospective employees to be vaccinated before commencing work?

FWO says potentially, yes. However, FWO also says that 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 so 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.

Key takeaways 

  • Employers can mandate that employees are required to undergo flu vaccinations in certain industries. The same principles may apply to the COVID-19 vaccination, particularly as the threat from the Delta variant of the virus becomes more widespread in Australia. But, the timeframe may not be so immediate, with demand for vaccinations exceeding supply. 

  • Employers might consider developing a clear, fair and effective plan which includes defined steps towards the implementation of the business’ mandatory COVID-19 vaccination policy. This would include inviting and encouraging meaningful consultation with employees and where relevant, unions. Employing positive, facilitative, reward-based messaging, disseminating relevant and up-to-date information prior to implementation of the business’ mandatory COVID-19 vaccination policy might bolster uptake of voluntary vaccinations.

  • Employers might also be mindful of compliance timeframes given to employees, considering that many of their employees may not yet be eligible for vaccination. 


Do you need help with your COVID-19 vaccination policies? 

Contact us to see if one of our model policies suits your needs.


Footnotes 

1 [2020] FWC 6083

2 2021] FWC 2989

3 Glover v Ozcare [2021] FWC 231

4 [2021] FWC 2156

Additional authors include: Damon King, Adele Garnett, Simon ClayerRose BurberyJohn Hickey and Elaina Betzel

Authors
Andrew Tobin
Partner
Andrew is a Partner and the head of HopgoodGanim Lawyers’ Workplace and Employment practice.

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