FAQ: Employer mandated COVID-19 vaccinations
The rollout of the COVID-19 vaccines for Australia has begun. To help, we have answered some of the frequently asked questions our employer clients are asking us.
Can employers require employees to be vaccinated?
Australian law has long held that employers owe their employees a duty of care under State and Territory WHS legislation. Pursuant to the model Work Health and Safety Act 2011 (Cth), employers must ensure, so far as is reasonably practicable, the health and safety of their workers and other persons who may be put at risk from their business.
But does this obligation allow employers to require their employees to be vaccinated in order to attend the workplace?
Short answer: It depends.
There are two main questions that employers should be asking themselves before they decide to mandate vaccinations for their staff:
- What are the risks associated with exposure to COVID-19 for employees and others at the workplace?
- Is mandatory vaccination lawful and reasonable?
The answer to these two questions will likely vary from industry to industry.
Risk of exposure
First and foremost, employers should comply with any public health orders made by relevant State and territory governments that apply to their workplace. Some employers in the Health and Aged Care sectors have announced their intention to mandate the vaccination for their staff. However, at the time of publishing this article, there are currently no laws or public health orders in Australia that specifically require employers to mandate their employees be vaccinated against COVID-19.
In NSW for example, the NSW Health policy directive, Occupational Assessment, Screening and Vaccination Against Specified Infectious Diseases requires all “NSW Health organisations” to establish a system to ensure “health care workers” are vaccinated for a number of diseases. Covid-19 is not currently one of the diseases listed, although this may change. The policy directive applies to public hospitals, dental clinics, and other NSW health agencies, although if updated to include Covid-19, many organisations in the health and care industries may find it persuasive, even if not strictly applicable.
There may also be other sectors, such as retail or fast food, that could argue it is reasonable for their staff to be required to be vaccinated, given the public-facing nature of such roles and the increased chances of infection, including to large numbers of people.
Further, given the obligations imposed on employers under the WHS Model Law, it is possible that even those who do not have any public facing roles may be required to be vaccinated in order to protect their fellow workers or others.
Lawfulness and reasonableness
It is a well-established principle that employers can issue employees with directions in the course of their employment where such a direction is lawful and reasonable. Whether a direction is lawful and reasonable has to be assessed on a case by case basis.
For a direction to be lawful, it needs to be within the terms of the employment contract, not in breach of any award or enterprise agreement, and compliant with any applicable Commonwealth, state or territory law (for example, anti-discrimination laws), that applies to the employees.
Some key points that employers should consider when assessing the lawfulness and reasonableness of a policy to mandate vaccination include:
- the employer’s WHS obligations, including the particular risks associated with specific workplaces, and whether there are a variety of work environments which may alter the risk;
- common law duty of care;
- any relevant provisions in an applicable employment contract, award or enterprise agreement, including consideration of relevant consultation obligations;
- whether the direction could be discriminatory and prohibited under anti-discrimination or human rights legislation;
- any reasonable exemptions to the direction, and the availability of alternatives to vaccination (such as the use of personal protective equipment or working from home for unvaccinated employees);
- considering whether some employees may have medical reasons for not getting vaccinated; and
- whether the employee can perform the inherent requirements of their position without being vaccinated, especially where there are alternative mechanisms in place to facilitate the employee being able to continue to work in the absence of being vaccinated.
Recent guidance from regulators indicates that vaccination should be considered as only one reasonably practicable step which could be taken in the context of a range of COVID-19 control measures. Safe Work Australia says:
At this stage it is too early to tell if the COVID-19 vaccines will stop a vaccinated person from being infected with the virus. This means that a vaccinated person may unknowingly carry and spread the virus to others around them, including workers and others in their workplace. For this reason, you must continue to apply all reasonably practicable control measures.
Despite this, there may still be many employers that consider that, in the interests of safety for all its employees, a mandatory vaccination policy is warranted. The Fair Work Ombudsman has recommended employers obtain their own legal advice if:
- they are considering making coronavirus vaccinations mandatory in their workplace, or
- they operate in a coronavirus high-risk environment (for example, health care or meat processing).
Can an employee refuse a vaccination?
Is it possible for an employee to object to being vaccinated? The short answer, in limited circumstances, maybe.
The Fair Work Ombudsman has said:
In the current circumstances, the overwhelming majority of employers should assume that they won’t be able to require their employees to be vaccinated against coronavirus.
There are many reasons why employees may not wish to be vaccinated, including, most commonly, religious beliefs, heath reasons or even, vaccine hesitancy.
Employers may find themselves in breach of human rights, and anti-discrimination laws, especially if they are aware of an employee’s medical requirement, to not be vaccinated, but proceed to take action against, or discipline the employee for their refusal. Such action could amount to discrimination or adverse action in breach of the Fair Work Act.
Regardless of the justification provided by the employee, we recommend that you seek legal advice on how best to proceed, and what the risks associated with any decision may be.
What should you do if an employee declines, or refuses to be vaccinated?
If an employer decides vaccination should be mandatory and an employee refuses to be vaccinated, the employer should ask the employee to explain their reasons for refusing the vaccination. If the employee has provided a legitimate reason for not being vaccinated (e.g. the employee has a pre-existing medical condition which prevents them from being vaccinated and can provide evidence in support), then the employer and employee should consider if there are any other options available to the employee instead of requiring them to receive the vaccination (for example, working from home, or at a different location where there is a lesser risk of exposure).
A key question for many employers will be whether an employee’s refusal to be vaccinated is enough to warrant disciplinary action against them. Whether this is a reasonable action to take will depend on the circumstances, especially where the employee’s refusal is in breach of a law (which at this stage is unlikely) or a clear (and repeated) lawful and reasonable direction requiring vaccination. Even where you believe that the employee has breached a relevant law, or reasonable direction, we strongly recommend you seek legal advice before disciplining the employee.
Disputes over mandatory vaccination
In early 2020, the AHPPC recommended to State and Territory Health Departments that aged care workers be required to have flu vaccinations in order to carry out their work. They indicated that staff who could not meet this requirement would need to be redeployed.
Relevantly, there were two important unfair dismissal claims filed in late 2020 by employees who worked in childcare and aged care who were respectively stood down after refusing a free flu vaccination their employers had directed them to receive amid the COVID-19 pandemic. However, given both applications were filed out of time and ultimately dismissed, the reasonableness of the employer’s direction to mandate vaccination was not examined by the Commission.
Whilst there may not yet be any finding by the Commission, Deputy President Asbury of the Commission opened the door, just slightly, to the possibility of future findings of lawfulness of a vaccination order by an employer. In the judgment it was held (at least in the circumstances of this case) that it was “arguable” that Goodstart’s policy requiring mandatory influenza vaccination for its employees was “lawful and reasonable”. The context of the workplace was important – caring for young children who are vulnerable due to their age and may be unable to be adequately vaccinated.
Whilst the reasoning in these cases suggests that in certain industries, failure to comply with a direction to be vaccinated against COVID without a valid medical reason could potentially be a reason for employers to take action against their employees for their refusal, we recommend that seek advice to discuss the options open to you before taking action against an employee for their refusal to receive the COVID-19 vaccination.
Privacy – should an employer require staff to disclose whether they have been vaccinated and can an employer keep these records?
Information and records around whether an employee has been vaccinated may be subject to various health and privacy regulation including the Privacy Act 1988 (Cth), which applies to businesses which turnover more than $3m per year (subject to various exceptions).
The Office of the Australian Information Commissioner has provided the following guidance:
- employers will only be able to collect information about employees’ vaccination status in very limited circumstances; and
- you must only collect vaccination status information if the employee consents and the collection is reasonably necessary for your functions and activities, unless an exception applies.
Guidance from regulators
The Office of the Australian Information Commissioner has provided the following guidance: – Coronavirus (COVID-19) Vaccinations: Understanding your privacy obligations to your staff
The Fair Work Ombudsman has recently released the following guidance for employers – COVID-19 vaccinations & the workplace
Safe Work Australia has issued a similar guidance – Vaccinations
Note: State and Territory health departments may make public health orders that require some workers to be vaccinated, for example, those considered to be working in high risk workplaces. If public health orders are made, you must follow them. You should stay up to date with the advice of your health agency.
You will need to get specific legal advice for individual circumstances (and the possibility that enterprise agreements or workplace policies may affect some situations). As the pandemic and legal issues continue to evolve, we may prepare and issue subsequent editions of this document. Please contact us if you wish to discuss.