Can you mandate COVID-19 vaccinations for your employees?
On 7 October, BHP announced that it would be introducing a requirement for COVID-19 vaccination as a condition of entry for all visitors and workers to all of its sites and workplaces in Australia.
Other large employers, such as Woolworths and major banks including Commonwealth and Westpac have also brought in similar policies for their staff.
These policies have raised questions for other employers as to whether a similar policy could be implemented in their business. But can all employers lawfully mandate COVID-19 vaccinations within their workplace?
WH&S Obligations
The starting point is that an employer has a duty of care under work health and safety laws to eliminate or minimise risks to health and safety as far as is reasonably practicable.
But the question becomes – does this duty of care extend to allow an employer to direct its employees to be vaccinated?
Employers should be undertaking a full risk assessment of the potential exposure of their employees to COVID-19 and implementing control measures to eliminate or minimise those risks, in accordance with their WH&S duties.
This will involve a consideration of whether mandatory vaccination is ‘reasonably practicable’ to address the risks of COVID-19.
If there are other control measures that would be sufficient to address those risks (such as working from home, social distancing, the use of PPE including facemasks), this will likely mean that a direction to vaccinate is not ‘reasonably practicable’ under WH&S laws.
The Current Legal Position
The Fair Work Ombudsman (FWO) has clarified that there will be limited circumstances where an employer may require their employees to be vaccinated, as follows:
If a specific law (such as a public health direction) requires employees in a particular industry to be vaccinated;
If an enterprise agreement, modern award, or employment contract includes a term requiring vaccinations; and
If a lawful and reasonable direction can be given by the employer (which is assessed on a case-by-case basis) – this will generally be the power that employers will need to rely upon.
Interestingly, the Federal Government’s position remains that the COVID-19 vaccine should be voluntary, and that employers need to make their own decisions appropriate to their workplace.
It has therefore been up to the State and Territory Governments to take the lead and issue public health directions which mandate vaccinations in particular industries. As at the date of this article, the Queensland Government has mandated COVID-19 vaccinations for the following:
Residential aged care facility workers
Quarantine facility workers
Healthcare workers, including Queensland Ambulance Service employees
Freight or logistic workers entering Queensland from another state or territory
On 5 October, the Western Australia Government mandated COVID-19 vaccinations for all FIFO and other resource sector workers on remote sites which has also affected many employers in Queensland who operate in, and supply labour to, Western Australia.
The upshot is that, in the absence of any law or public health direction mandating a COVID-19 vaccine for a particular workplace or industry, employers will need to rely upon their own power to issue a “lawful and reasonable direction” to do so.
Lawful and Reasonable Directions
It is well-established that an employer can issue directions to employees in the course of their employment, so long as that direction is lawful and reasonable.
For a direction to be “lawful”, it cannot be in breach of any employment contract, award or agreement, or any applicable laws such as anti-discrimination laws.
Determining whether a direction is “reasonable” is a far more subjective approach and is to be assessed on a case-by-case basis, considering the specific industry and an individual employee’s role.
The FWO has introduced a 4 Tier system which categorises employees according to the different levels of risk which may be present:
Tier 1 - where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).
Tier 2 - where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).
Tier 3 - where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).
Tier 4 - where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).
According to the FWO, a direction to vaccinate for a Tier 1 or Tier 2 employee is more than likely to be reasonable (provided it complies with anti-discrimination laws). These tiers relate to circumstances where it is an inherent aspect of an employee’s duties to have contact with vulnerable members of the community or people with an increased risk of being infected with COVID-19.
On the other hand, for a Tier 4 employee it is very unlikely that a direction to vaccinate will be considered reasonable due to the limited risk of transmission.
Tier 3 is more problematic – but a direction is likely to be reasonable where community transmission has occurred recently in the area the employer is located, or if the employer is required to remain open and operative during a lockdown. However, a range of other factors come into account in relation to the nature of the workplace, the specific duties of employees, vaccine availability etc.
There is unfortunately no clear case law specific to COVID-19 vaccinations to provide any guidance to employers as to the lawfulness and reasonableness of mandating these vaccinations in the workplace. The limited case law available relates to the mandating of flu vaccines for employees in the childcare, health and aged care industries – which somewhat act as a guide.
Stay Tuned
The legal landscape in relation to mandating COVID-19 vaccinations in the workplace is continuously shifting.
Earlier in the pandemic, directions for mandatory COVID-19 vaccinations were probably only lawful and reasonable for those working in the healthcare and aged care sectors.
But this is now gradually changing as the Federal and State Governments move to open the domestic and international borders. Once borders are opened (particularly if there is increased community transmission as a result), employers may then have stronger grounds to assert that a direction to vaccinate is a lawful and reasonable one in their workplace.
Another significant move in this direction relates to the recent announcement by the Queensland Government to impose restrictions from 17 December against any unvaccinated persons from entering certain non-essential venues. These restrictions will now require, by implication, employees of those non-essential venues to be fully vaccinated.
Providing a Direction – Important Considerations!
Once an employer has made a decision to issue a direction to its employees to be COVID-19 vaccinated, there are still many important considerations.
The direction itself
Employers should draft a clear policy which addresses at least the following:
Risks to be mitigated in the workplace by issuing the direction
Which employees the policy applies to
Specific dates by which employees must have their first and second dose
Process for dealing with legitimate medical exemptions under the policy
Consequences if an employee does not comply with the policy
Consultation processes
Entitlements to annual leave and sick leave arising out of the direction to be vaccinated
Consultation
The WH&S Act and most modern awards require employers to consult with employees about major workplace changes.
We urge employers to check the relevant clauses to be aware of the specific requirements relating to consultation.
Whilst consultation does not require any consensus from employees, an employer should consider the views of employees before making any decision.
Discrimination laws
Employers should remain wary of anti-discrimination laws.
For example, a discrimination claim may arise out of an employer trying to impose a direction ‘across the board’ within their workplace without consideration of those employees who may suffer from a medical condition which makes them exempt from receiving a COVID-19 vaccine.
Workers’ compensation claims
If an employee experiences adverse side effects from a COVID-19 vaccine taken at the employer’s direction, there may be a risk of a workers’ compensation claim by that employee.
However the Federal Government has introduced a ‘No Fault’ Indemnity Scheme which is intended to provide quick access for persons who suffer a moderate to significant impact following an adverse reason to the vaccine and will cover the costs of injuries above $5,000. The Scheme will not act as a complete indemnification for an employer from workers’ compensation claims as workers accessing the Scheme will still have the option of pursuing other legal action – but the Scheme providing quicker and simpler access to compensation will hopefully make workers’ compensation claims and other claims less likely against employers.
If Mandated – Could a Worker Refuse? What are the Consequences?
If a worker refuses to comply, this may give rise to a valid reason for dismissal on the basis they have failed to comply with a lawful and reasonable direction issued by their employer.
There may also be a valid reason for dismissal based on capacity reasons (i.e. being unable to fulfil the inherent requirements of the role, such as site approval) if the worker is usually placed at a particular location or site who have imposed site entry conditions (such as BHP).
If a public health direction is in place requiring vaccinations which the employer is enforcing against its employees, an employer will have much stronger grounds to take disciplinary action for a failure to comply.
Before taking any adverse action against an employee for a failure to comply, employers should ask the employee to explain their reasons for refusing the vaccination to ensure that there are no medical conditions which may exempt them from receiving a vaccine.
Privacy Implications
Employers also need to be mindful of privacy obligations under the Privacy Act 1988 (Cth) in collecting health information from their employees such as vaccination status information. We can provide employers with advice on how to comply with their privacy obligations.
Summary
To sum up some important points:
While an employer has duties under work health and safety laws, they may be able to address the risks of COVID-19 by imposing other control measures and it may not be reasonably practicable to issue a direction to their workforce to get vaccinated;
Without any public health direction in place applying to their industry, employers will be left to rely upon their power to issue a lawful and reasonable direction to their employees. Employers should refer to the FWO guidance but also obtain specific legal advice as to whether such a direction would be lawful and reasonable in their workplace;
If an employer decides to issue a direction for mandatory COVID-19 vaccination within its workplace, it should:
a. Be mindful of privacy implications in collecting health information from their employees, such as vaccination status information;
b. Be careful to draft a clear policy which addresses all of the necessary information (including to build in sufficient flexibility to allow for exemptions for employees who have medical exemptions etc);
c. Appropriately consult with employees about the policy; and
d. Obtain legal advice on a case-by-case basis prior to dismissing any employee for a refusal to follow a direction.