Article by: Charles Power, partner and workplace relations specialist, Holding Redlich
As the COVID-19 vaccination ramps up in Australia, an important issue for employers is whether they can require employees to be vaccinated against COVID-19.
The choice to get vaccinated is a very personal one. There needs to be relevant link to the employment relationship for employers to enforce a mandatory vaccination policy.
The connection would be readily established if there is legislation in place requiring vaccination. However, there is currently no generally-applicable legislation requiring employees to be vaccinated against COVID-19.
Legislative power to make COVID-19 vaccine mandatory
On 30 June 2021, National Cabinet decided to require all residential aged care workers to have the first dose of the COVID-19 vaccine by mid-September 2021.
However, the Commonwealth’s powers to legislate for mandatory vaccinations is unclear. This is why the Federal Government has said that it will be up to the individual State and Territories to implement the relevant public health directions to mandate the vaccine for aged care workers.
It is likely that the State and Territories will have the power under the relevant public health legislation to issue public health directions to mandate the COVID-19 vaccine for employees. For example, in NSW, a public health order has been made to require all quarantine, transportation and airport workers to be vaccinated against COVID-19 before they will be allowed to work in those workplaces.
Obligations under work health & safety legislation
Absent a specific law permitting employers to make vaccinations a condition of work, employers will need to fall back on work health & safety (WHS) legislation. The risk that employees will bring COVID-19 to a workplace and infect employees and customers – or contract the virus in the workplace - triggers their employers’ WHS statutory duty to take practical measures to control that risk.
What is a practical measure to control that risk depends on:
- the chance of the risk becoming a reality
- the harm that will be caused if this happens, and
- what we know about ways to control the risk i.e. suitability and availability of control measures.
Getting vaccinated is certainly a control measure. However, so is social distancing, self-isolation, working from home arrangements and wearing of PPE and masks. Given the uncertainty associated with the vaccine and difficulties in obtaining supply, in most cases compulsory vaccination policies will not be a practical measure to control risk of the virus being contracting or spread in the workplace. This is the current view of the peak WHS agency, Safe Work Australia, and the Fair Work Ombudsman.
However, in certain sectors whether the risk of contraction is high (e.g. hotel quarantine) or the consequences catastrophic (e.g. hospitals and aged care), the balance will tip towards vaccination becoming a WHS obligation for employers in that sector.
Implementing a defensible No Jab, No Job policy may still be unlawful in certain cases
Even if a mandatory vaccination policy can be justified, in specific cases the employer’s direction that it be observed may still be unlawful. Some of the areas of exposure for employers are examined below.
If an employee’s refusal to be vaccinated is based on religious or ethical beliefs, a general unease with the vaccine from a medical perspective, pregnancy or underlying health conditions, taking action against an employee for refusing to be vaccinated may risk a discrimination claim and federal or State anti-discrimination laws.
Awards and enterprise agreements may oblige employer’s to share relevant information with affected employees and give them opportunities to raise issues with vaccination before the requirement is imposed.
Employers who require or recommend vaccination, or organise for it to be taken onsite or at another location, or provide some incentive for it to be taken, may find that any resulting injury suffered from the vaccination is compensable under their workers’ compensation insurances. In the vast majority of cases however, the worst of the symptoms flowing from vaccination will be fatigue, headache, nausea, dizziness or redness lasting 48 hours. These are unlikely to lead to valid workers’ compensation claims.
For public sector employers and private sector organisations with annual turnover of $3m or more, privacy laws require that a worker can only be required to disclose their vaccination status if the employee consents and the collection is reasonably necessary for its functions and activities.
When collecting information about an employee’s vaccination status the employer should use by lawful and fair means, and inform employees why the information is being collected and how it will be safeguarded. The information should only be used for the purposes of the collection, kept secure and destroyed when no longer required.
Recent Fair Work Commission rulings on mandatory flu vaccines in the workplace make it clear that employers implementing a reasonable and proportionate policy requiring mandatory vaccinations in fair manner can successfully defend an unfair dismissal claim made by an employee who refuses to comply. A factor assisting the employer in each case was the fact that the people served by the business (parents of young children in early learning centres and elderly people receiving home care services) had a reasonable expectation that workers serving them would have the flu shot.
Although, these decisions make clear that an employer can mandate the influenza vaccination on their employees, it remains unclear whether this would be the case for the COVID-19 vaccine.
The Government and many experts have said that a significant proportion of the population will need to be vaccinated against COVID-19 before life can go back to normal. However, whether employers can make COVID-19 vaccination a condition of employment remains uncharted territory.
In the absence of a clear legislated mandate for employers to implement compulsory vaccination policies, businesses will need to look at their safety obligations and customer demand to justify such a policy. If the risk of infection at the workplace is sufficiently great or the consequences for the business and its customers sufficiently dire then a mandatory vaccination policy is likely to be justified by WHS laws.
A mandatory vaccination policy will only be defensible and enforceable if it allows exceptions on valid medical grounds, and enables consultation about ways to keep in employment an employee with valid grounds to object to vaccination.
You can hear Charles Power speak at Thomson Reuters’ Employment Law for In-house Counsel Conference to be held 8 September 2021 in Sydney. The conference will also be livestream for remote attendees’ convenience.
Employment law issues have become one of the biggest facing general counsel in the workplace - even more so after the Covid-19 pandemic. The conference is for general counsel and employment law specialists and addresses contentious issues in employment law including:
- COVID-19 vaccinations what are employers doing?
- Working from home, Returning to Work and hybrid workplace – developing policies that are fair and risk proof
- Latest changes to casual employment
- Wage underpayments and changes to modern awards and how to minimise the risk of accessorial liability
- Panel discussion on finding the employment law calling
- The ugly side: The corporate counsel’s role in preventing and responding to workplace bullying, harassment, and discrimination and emerging issues
- The inhouse counsel’s role in making mental health an organisational