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No jab, no job? Not at this stage for COVID-19 vaccinations

Libby Pallot, Walter MacCallum, Anthony Massaro, Ben Tallboys, Abbey Burns, Caitlin Walsh, Meena Iskandar, Natasha Sim, Morgan Smithe & Ellena Kouris

The rollout of COVID-19 vaccinations in Australia has increased debate about whether employers can require workers to have COVID-19 vaccinations. 

The arguments

On the one hand, there is a need for employers to ensure they can provide a safe environment for workers and other people affected by their operations. Employer groups have raised concern over liability issues in the event there is a COVID-19 outbreak in a workplace where some or all workers have not been vaccinated.

On the other hand, there is the issue of the right of an individual to decide what goes into their body, the question of whether vaccination is necessary given the availability of other precautions in the workplace, and the concerns raised by some individuals about possible side effects. 

When is it lawful and reasonable to require staff to be vaccinated?

An employer can only require staff to be vaccinated if it is lawful and reasonable to do so. For the requirement to be lawful and reasonable, it needs to be derived from the employer’s duty to ensure health and safety. Therefore the question becomes, is a mandatory vaccination policy a reasonably practicable measure for an employer to adopt, in all of the circumstances of the employer and its sector?

While employers should assess this on a case by case basis, there are strong indicators that for most employers, it is not reasonably practicable to require staff to have vaccinations for COVID-19.

Safe Work Australia has stated that “most employers” do not need to make vaccination mandatory to comply with work health and safety obligations, given the availability of other control measures. Safe Work Australia encourages a risk assessment based on the particular risks of an employer’s operation, such as the likelihood of exposure to infection due to the location and nature of the work, the risk to vulnerable people, and the suitability of other control measures.

This is consistent with the Fair Work Ombudsman’s current guidelines, which state that “the coronavirus pandemic, on its own, does not automatically make it reasonable for an employer to direct their employees to be vaccinated against coronavirus”. An employer-issued direction to vaccinate is more likely to be considered reasonable, and therefore enforceable, in circumstances where employees are clearly in close contact with vulnerable persons or persons with an elevated risk of adverse effects arising from a COVID-19 infection.

Another important factor is the availability of the vaccines. At this point, the vast majority of employees are not yet able to access the vaccine, and will not be for several months.

Employers need to also ensure that any direction around vaccination is lawful, which means that they must ensure that the direction does not directly or indirectly discriminate against a person. For example, a person should not suffer adverse employment consequences if they have legitimate medical grounds to refuse to undergo a vaccination.

Will governments intervene?

To date, there have been no public health directions from either the federal or state governments which would specifically enable employers to mandate COVID-19 vaccines in the workplace. The federal government’s policy is that vaccinations will remain voluntary, notwithstanding its campaigns to encourage all workers to be vaccinated against COVID-19. Both the Prime Minister, Scott Morrison, and the Industrial Relations Minister, Christian Porter, have made public statements that the federal government will not make vaccinations compulsory.

Mr Porter has also stated that “the overwhelming majority” of employers should assume that they have no power to force employees to be vaccinated – consistent with the messages coming from Safe Work Australia and the Fair Work Ombudsman.

However, some States and Territories did introduce directions which required certain people to be vaccinated against influenza in order to enter aged care facilities during the height of the pandemic. It may be that if there are future outbreaks, State or Territory governments may intervene and require staff in certain sectors to be vaccinated.

Preliminary view from the Fair Work Commission

A recent Victorian unfair dismissal claim, Arnold v Goodstart Early Learning Limited t/as Goodstart Early Learning [2020] FWC 6083, raised the question of whether it was lawful and reasonable for an employer to direct an employee to take the influenza vaccine in the absence of a government mandate. While the claim was out of time and dismissed for that reason, Deputy President Asbury briefly commented on the merits of the case and found it arguable that the Applicant unreasonably refused a lawful direction when she declined the mandatory flu vaccination.

There is another case currently before the Fair Work Commission which is also considering whether a direction to be vaccinated against the influenza virus is lawful and reasonable in the circumstances. We will provide updates on this case as the information becomes available.

Guidance for employers

As a matter of good practice, employers should continue to implement the same measures taken prior to vaccine rollouts (such as good hygiene, physical distancing and increased cleaning) to ensure compliance with their duty to provide a safe working environment, even where employees have been vaccinated.

If employers wish to make COVID-19 vaccination mandatory, they should carefully consider the risks within their operation, the other measures available to address those risks, and ensure that their approach is carefully adapted to the their specific situation. They also need to allow for flexibility on the basis that some people may have legitimate reasons not to be vaccinated.

There has been some discussion of employees being unwilling to attend work in circumstances where other employees in the workforce have not been vaccinated against COVID-19. Generally speaking, employees may only refuse to attend work if they have a reasonable concern that attending the workplace would expose them to a serious risk to their health or safety.

Safe Work Australia has stated that “there is currently insufficient evidence about the impact of COVID-19 vaccines on the transmission of COVID-19. Therefore, there is no reason why workers who are currently attending workplaces with other people should stop doing so because of the vaccine rollout.”

Regardless of the position employers decide to take on vaccinations, we recommend putting a tailored policy in place which addresses these issues so that everyone is aware of the position taken by the employer for that particular workplace, and which allows room to move in the event that circumstances change. We are able to provide you with a policy or review any policy you have or want to put in place.

How we can help

If you have any questions regarding anything covered in this Alert, please contact Russell Kennedy’s Workplace Relations, Employment and Safety team. Our team has significant experience assisting employers reviewing their contractor and employee arrangements. 

If you would like to stay up-to-date with Alerts and Insights from our expert Workplace Relations, Employment and Safety team, you can subscribe to our mailing list here.

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