With the increased risk from the highly infectious Delta COVID-19 variant within the community and workplaces, a hot topic for employers is whether they can direct their employees to have the COVID-19 vaccine. And if they refuse, can they terminate or restrict their employees from entering the workplace.
Employers have an overarching legal obligation to keep their workplaces safe and to eliminate or minimise so far as ‘reasonably practicable’ the risk of exposure to COVID-19. This obligation to ensure the health and safety for all workers needs to be balanced however against the workplace rights of individuals. With the risk of exposure to COVID-19 increasing in recent months in Australia, and vaccinations being key to NSW and Victoria moving out of lockdown, this balancing act needs regular reassessment.
There is increasing guidance as to the circumstances in which an employer’s right to direct its employees to be vaccinated could be considered reasonable. In recent months, the Fair Work Ombudsman (FWO), SafeWork Australia and the Australian Human Rights Commission (AHRC) have issued useful guidance for employers in navigating this minefield, which we review below.
This guidance reinforces that whether mandatory vaccinations are a reasonably practicable control measure to manage the risk of COVID-19 is dependent on the particular circumstances of the individual workplace, taking into account obligations under safety, anti-discrimination and privacy laws.
What is “reasonable” will continue to evolve and will depend on the public health situation at a given time. Until very recently, the prevailing view has been that it would only be lawful and reasonable for employers operating in high-risk settings such as hotel quarantine and aged care to mandate vaccinations. However, given the highly transmissible nature of the Delta variant, higher rates of COVID-19 circulating in the community, and the increased availability of the vaccine, in our view, mandatory vaccination policies will increasingly be seen as reasonable beyond the traditional high risk settings, including for example, in other areas of where community transmission of the virus poses a significant risk such as telecommunications, transport, logistics, manufacturing and retail.
Where a mandatory vaccination policy is not presently appropriate or necessary however, employers can consider measures to support and encourage employees to get vaccinated, such as by offering time off to receive the vaccine, sick leave if they feel unwell following it, and other incentives such as gift vouchers and rewards. Employers should also consult with employees to better understand what proportion of employees are currently vaccinated, and their appetite for a mandate. Ideally before a mandatory vaccination policy is introduced, employees will have been given every opportunity to be vaccinated, they will have been consulted, and will understand the justification for such a policy.
The decision making process in determining whether to implement a mandatory COVID-19 vaccination policy will likely be a very complex for employers, and we recommend obtaining legal advice specific to your circumstances. Our team can assist with advice on:
a. The development of a workplace policy in relation to COVID-19 vaccinations,
b. Ensuring compliance with consultation obligations under Work, Health and Safety law, and any applicable modern award, enterprise agreements, or employment contracts;
c. Ensuring that any COVID-19 vaccination workplace policy is compliant with anti-discrimination law;
d. Ensuring compliance with privacy laws if health information (including evidence of vaccination) will be collected from employees;
e. Reviewing employment contracts and enterprise agreements to assess whether they contain any terms with respect to vaccinations, and drafting any contract variations required;
f. Determining a process for managing refusals, including the potential consequences for employees who refuse to comply with a vaccination policy; and
g. identifying alternatives methods for managing COVID-19 risks in the absence of, or as a pre-cursor to, adopting a mandatory vaccination policy.
Mandatory Vaccination Guidance material
Recently, the FWO has released guidance to employers about the factors that may justify a mandatory vaccination policy. Such guidance material is likely to evolve having regard to rising infections in the community and greater access to vaccinations.
The advice from the Fair Work Ombudsman
In August 2021, the FWO updated its position with respect to mandatory vaccinations, which had previously been that that “the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus.”
The FWO’s updated advice now recognises situations in which an employer’s direction to employees to be vaccinated is likely to be reasonable. The FWO’s advice provides that employers can require their employees to be vaccinated where:
- a specific law (such as a state or territory public health order) requires an employee to be vaccinated; or
- the requirement is permitted by an enterprise agreement, other registered agreement or employment contract; or
- it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis
In recent weeks we have seen an increase in the health orders mandating vaccination for specific employers, for example, authorised workers leaving an area of concern for work, early education and care facility workers and disability support workers who live or work in an area of concern, as well as recent announcements regarding forthcoming mandates for NSW health department employees and NSW teaching staff.
Most employers however, in the absence of public health orders, will need to assess on a “case by case” basis if a direction requiring their employees to be vaccinated would be reasonable. The FWO advises to take the following into consideration:
- 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;
- work health and safety obligations;
- 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.
The FWO has also set out a guide whereby it distinguishes between 4 different groups of workers based upon the level of risk of exposure for employees or the vulnerable members of the community with whom they work:
|1||Work where employees are required to interact with people with an increased risk of being infected with coronavirus e.g. hotel quarantine and border control||An employer’s direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected with coronavirus, or giving coronavirus to a person who is particularly vulnerable to the health impacts of coronavirus.|
|2||Work where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus, e.g. health care and aged care workers|
|3||Work where interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment, e.g. stores providing essential goods and services.||For employees performing Tier 3 work:
|4||Work where employees have minimal face-to-face interaction as part of their normal employment duties, e.g. where they are working from home.||An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of the coronavirus.|
If an employee refuses an employer’s direction to get vaccinated, the FWO’s guidance provides that an employer may be able to take disciplinary action, including termination of employment, if the employee’s refusal is in breach of:
- a specific law, or
- a lawful and reasonable direction requiring vaccination.
FWO recommends however, that prior to taking any disciplinary action, the employer should enquire as to whether there is a legitimate reason for not being vaccinated (for example, the employee has an existing medical condition that means vaccination is not recommended for the employee). The employee and their employer should also consider whether there are any other options available instead of vaccination.
If however, after a review of the individual facts and circumstances, disciplinary action might be warranted for a failure to follow the employer’s lawful and reasonable direction that employees be vaccinated. Employers should make sure that they follow a fair process and have a valid reason for termination, or they may breach unfair dismissal or adverse action laws under the Fair Work Act 2009. We recommend that employers obtain legal advice prior to proceeding with any disciplinary action, in order to minimise the risks of termination and discrimination related claims and the possible reputational issues that may follow.
The advice from the AHRC
The Australian Human Rights Commission (AHRC) advises that if there is no specific law requiring that a person be vaccinated, employers should be cautious about imposing mandatory COVID-19 vaccination policies or conditions on staff. It notes that a strict rule or condition that mandates COVID-19 vaccinations for all staff, including people with certain disabilities, medical conditions or who are pregnant, may engage the ‘indirect discrimination’ provisions in Sex Discrimination Act 1984 (Cth) (SDA), the Disability Discrimination Act 1992 (Cth) (DDA) and the Age Discrimination Act 2004 (Cth) (ADA). Indirect discrimination occurs when a person is required to comply with a general requirement or condition, such as mandatory COVID-19 vaccinations, and they are unable to do so because of a protected attribute, such as disability or age, and it has the effect of causing disadvantage to them.
It is a defence to a claim of indirect discrimination however if the employer can demonstrate that a condition or requirement is “reasonable” in the circumstances, which will likely to be highly fact dependent, considering the workplace and the employee’s individual circumstances. One such consideration might be whether there are any alternative methods that might reasonably achieve the employer’s objective without recourse to the mandatory COVID-19 vaccine requirement, such as:
- testing regimes;
- remote work;
- physical distancing; or
- personal protective equipment.
The AHRC also recognises that in responding to a complaint of disability discrimination, an employer may seek to rely upon the defence of ‘the inherent requirements’ of the role. Depending on the circumstances of the case, it might be an ‘inherent requirement’ of a particular role that a person be vaccinated against COVID-19.
For example, in the decision concerning the influenza vaccine, Kimber v Sapphire Coast Community Aged Care Ltd  FWC 1818, the dismissal of a receptionist working in an aged care residential facility refused to comply with a mandatory vaccination policy, was found to be fair, because vaccination against the flu was an inherent requirement of her role. The employer was able to rely upon the NSW COVID-19 directions in force at that time which prohibited persons entering an aged care facility without an up-to-date influenza vaccine. This means the employee could not lawfully enter her place of work unless vaccinated and therefore could not perform her role.
The advice from SafeWork Australia
SafeWork Australia’s position with respect to mandatory vaccinations is that “It is unlikely that a requirement for workers to be vaccinated will be reasonably practicable,” because, for example:
- public health experts have not recommended a vaccine be made mandatory in a number of industries
- there may not yet be a vaccine available for workers, or
- some workers may have medical reasons why they cannot be vaccinated.
The guidance of SafeWork Australia to employers is that they must do all that is reasonably practicable to minimise this risk of COVID-19, and vaccination should be considered as one way to do so “in the context of a range of COVID-19 control measures“. Such COVID-19 control measures are said to include physical distancing, good hygiene and regular cleaning and maintenance and ensuring workers do not attend work if they are unwell.
We note however that SafeWork Australia’s guidance was published in April 2021. A lot has changed since that time, including significantly greater supply of vaccines, and a much higher risk of COVID-19 for workers in NSW, Canberra and Victoria, who are unable to work from home. It may very well be that, as vaccination targets are reached, and NSW and Victoria move to lift lockdown restrictions whilst COVID-19 is transmitting in the community, that SafeWork Australia moves from its position that mandatory vaccinations are unlikely to be reasonably practicable to a position that promotes the control measure of vaccinations above the more traditional control measures of physical distancing, hygiene and cleaning.
SafeWork Australia does go on to provide advice with respect to undertaking a risk assessment to assist in determining whether employers should require its workers to be vaccinated, with reference to the following factors:
- Will workers be exposed to the risk of infection as part of their work?
- Will workers work with people who would be vulnerable to severe disease if they contract COVID-19?
- What is the likelihood that COVID-19 could spread in the workplace?
- Do your workers interact with large numbers of other people in the course of their work that could contribute to a ‘super-spreading’ event if your workers contract COVID-19?
- What other control measures are available and in place in your workplace? Do those control measures already minimise the risk of infection, so far as is reasonably practicable?
- Would a requirement to be vaccinated be unlawful in the circumstances? For example, would it discriminate against a class of employees?
Next Steps for Employers
Whether to implement a mandatory COVID-19 vaccination policy will likely be a very complex decision for employers and it is important to recognise that, the advice from FWO, SafeWork Australia and AHRC is guidance only.
As this area of law develops, we recommend that employers:
- Consider the guidelines of FWO, AHRC and Safe Work if your business is contemplating issuing a direction to employees to be vaccinated, to assist in determining the appropriateness of such a mandate.
- Consider your consultation obligations, both under health and safety laws, and under any applicable award, enterprise agreement or employment contract.
- Consider if a staff survey might be a useful tool to gauge the likely support or resistance from employees to a mandatory vaccination policy, and to understand current vaccination levels within your workforce.
- Prior to any mandatory vaccination policy, in the absence of any health order, consider encouraging voluntary vaccinations, through the provision of special leave or other incentives.
- If mandating vaccines, consider what allowance might be made for employees who have genuine medical exemptions, or any other reasonable grounds for refusing.
- Consider the reasonableness of the terms of the direction that employees be vaccinated, for example, a direction requiring all employees to be vaccinated immediately may not be reasonable given supply issues.
- Prior to imposing any disciplinary actions for a refusal to comply, provide procedural fairness, including consider the views and circumstances of any employees who refuse the direction given, and explore all reasonable alternatives to dismissal such as allowing the employee to work from home or on alternative duties.
- Obtain legal advice. If you have any uncertainty about whether mandating vaccination will be considered a “lawful and reasonable” direction in your workplace, we recommend obtaining legal advice specific to your circumstances.