Legal Alert

CAN COVID-19 VACCINATIONS BE MANDATED IN AUSTRALIAN WORKPLACES?

Authors: Amy Zhang & Jacob White

Given the rollout of COVID-19 vaccines in Australia, one question on the mind of many Australian employers is whether they can or should require their employees to receive the vaccine.

At this stage, the federal government has not made it compulsory for Australians to receive the vaccine. Nor has the federal government passed any law allowing employers to require their employees to be vaccinated.

Whether or not vaccinations can and should be mandatory is a question that will (like many legal questions) depend on the circumstances of every case.

In this article, we explore what the current legal framework says about mandating COVID-19 vaccines in the workplace. 

DUTY TO PROVIDE A SAFE SYSTEM OF WORK

At common law, employers have a duty to provide a safe system of work for their employees. Under Work Health and Safety legislation, employers are also required to ensure the health and safety of its workers, as far as reasonably practicable.

Pursuant to these obligations, many employers have taken steps to minimise the risk of spreading COVID-19 in the workplace, including through measures such as social distancing, mask use, work from home arrangements, room quotas, disallowing face-to-face meetings and requiring staff to disclose whether they have any symptoms of COVID-19.

Whether employers are required to go further, by issuing reasonable directions to employees to receive the vaccine once it is available, is less clear.

There does not appear to be any case law considering the proposition that an employer’s obligation under Work Health and Safety legislation to provide “a work environment without risks to health and safety” as far as reasonably practicable (eg section 19(3)(a) of the Work Health and Safety Act 2011 (NSW)) may extend to requiring vaccination. However, it is certainly arguable.

At least one member of the Fair Work Commission has observed that a mandatory influenza vaccination policy might be a necessary precaution for an employer to take to discharge their duty of care in a child care setting: Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083 at [32].

Similar arguments may be made about the COVID-19 vaccination.

Employers are encouraged to look at occupation and industry-specific publications provided by authorities such as Safe Work Australia for guidance in relation to what practical steps should be undertaken by employers to fulfil their primary duty of care. Employers should keep an eye on the Safe Work Australia website for clarity in relation to whether a mandatory vaccination is required.

Any consideration of a mandatory vaccination policy will need to involve a balance of other rights of employees, including the right to bodily integrity, anti-discrimination laws and the terms of the contract of employment (which usually only permit lawful and reasonable directions). Some of these considerations are set out below.

LAWFUL AND REASONABLE DIRECTIONS

Employers may have the ability to issue directions to employees to receive the COVID-19 vaccine. Unless the contract of employment specifically deals with the issue of vaccination, the critical issue in each case will be whether such a direction is “lawful and reasonable” in the circumstances. This will depend on a variety of considerations, including:

1. the industry;
2. nature of the work that is being performed by particular employees;
3. the degree of contact required between employees and other members of the public;
4. the ability of employees to work remotely;
5. the availability of the vaccine at any point in time;
6. the effectiveness of other measures such as social distancing and masks;
7. any medical or other well founded reasons why the employee cannot receive the vaccine;
8. the basis for any objection advanced by an employee;
9. how advanced and successful the vaccine is at the particular time; and
10. the advice and requirements of government and medical bodies at the time.

What is clear is that there cannot be a one-size-fits-all approach given the significant variables in the way that businesses operate and the different needs of different workers. One might expect mandatory vaccination policies to be more likely to be a reasonable requirement of employers operating in high risk settings (such as employers of international airline workers or workers in hotel quarantine locations) as compared to lower risk settings.

A failure to comply with a lawful and reasonable direction can constitute a valid reason for terminating the employment of an employee both at common law and for the purpose of unfair dismissal legislation.

The recent unfair dismissal cases of Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083 and Maria Corazon Glover v Ozcare [2021] FWC 231 provide some insight into how the Courts and Tribunals might respond to these issues. In these cases, the issue of mandatory influenza vaccinations was considered, although not ultimately determined.

In the former case, Commissioner Asbury notably opined:

“…it is at least…arguable that the Respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations…It is also equally arguable that the Applicant has unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position, which involves the provision of care to young children and infants.”

In the latter case, Commissioner Hunt similarly noted that:

“…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 largely a consideration as to whether the Respondent’s decision to make an influenza vaccination an inherent requirement of the job is lawful and reasonable having particular regard to her care of vulnerable clients in their home.”

Commissioner Hunt also noted that the employer would be expected to lead evidence as to the nature of the vulnerabilities of their clients, the kinds of ailments that they may suffer from, and the potential effects of those individuals contracting influenza from an unvaccinated employee.

Although the issue of the lawfulness and reasonableness of a direction to vaccinate was not ultimately determined in either of these cases, these cases indicate that there is a good argument that the Courts and Tribunals may regard mandatory COVID-19 vaccinations as lawful and reasonable in certain settings.

CONSULTATION

Under Work, Health and Safety legislation in each state and territory, employers are required to consult with their employees when making decisions about the implementation of safety measures (see, for example, sections 47 and 49 of the Work Health and Safety Act 2011 (NSW)).

The introduction of a mandatory vaccination policy is a matter that will likely need to be the subject of consultation with employees in accordance with those provisions. Those provisions require that workers be given information about the proposed change (eg this might include detail about who should be required to receive the vaccine and when, and the consequences of not receiving the vaccine). They also require that employees be given a reasonable opportunity to express views about the matter and have those views be taken into account. Proper consultation will allow employers to assess whether in the case of each employee a direction is lawful and reasonable. Consultation can help employees embrace change as well, even where it is not strictly required by law.

ANTI-DISCRIMINATION LEGISLATION

Another key consideration is the impact of anti-discrimination legislation and provisions. Employers should be mindful that some employees may have good medical reasons for not being vaccinated and may face claims of disability discrimination where they purport to require such an employee to be vaccinated. Employees may also object to vaccination on religious and/or political opinion grounds, which are protected attributes under anti-discrimination law in some states and territories and the Fair Work Act. In light of these anti-discrimination laws, employers should take care before taking steps such as dismissing an employee who refuses to be vaccinated or discriminating between employees who do and do not receive the vaccination.

One possible defence under anti-discrimination legislation arises where vaccination is necessary to perform the inherent requirements of the role. Generally, before relying upon this exception, employers will be required to first consider whether reasonable adjustments can be made to allow the employee to work without a vaccination. A reasonable adjustment might involve allowing the employee to work remotely. Employers may also apply to the Australian Human Rights Commission for a specific exemption in other circumstances which, if accepted by the Commission, can operate as a valid defence to a discrimination claim.

OTHER LEGAL REQUIREMENTS TO BE VACCINATED

There are government orders and directions requiring employees to receive vaccinations in certain circumstances, which are generally designed to address the particular vulnerabilities of work in the health industry. For example, the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020 (Vic), which took effect from 25 March 2020, enables the Victorian Department of Health and Human Services to direct healthcare providers to require that their employees or a class of employees be vaccinated or prove immunity to specified diseases. Where a healthcare provider fails to comply with a direction, they could face suspension or revocation of registration as a health service establishment. Action taken by an employer in the health industry in compliance with a direction from the Department will not constitute discrimination on the basis of political or religious belief or activity under equal opportunity legislation. It is possible that these laws will be used to require certain classes of employees to receive the COVID-19 vaccine.

CONCLUSION

For employers, the biggest issue on the horizon will be striking the right balance between, on the one hand, protecting staff and fulfilling their duty of care, and on the other hand, not overreaching and unlawfully mandating COVID-19 vaccinations, which could result in legal action.

Employers should at the very least encourage their employees to get COVID-19 vaccinations so as to discharge their safety obligations, whilst being mindful of and genuinely consider any medical or other legitimate reasons that may impact on an employee’s ability to comply. They should also consider:

• preparing a policy regarding COVID-19 vaccination;
• providing education to employees to ensure that employees have requisite knowledge about the risks and benefits of vaccination;
• making arrangements for employees to be vaccinated at work or allowing employees to leave work to be vaccinated during work hours;
• alternatives for employees who refuse to be vaccinated.

Employers should also keep an eye on information published by official government agencies regarding the issue of mandatory vaccinations.

If you require any assistance with assessing these risks, drafting COVID-19 related policies or other legal counsel, please do not hesitate to contact our team of specialists.

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