Mandatory workplace vaccinations are a hot topic and a controversial workplace issue at the moment.
Australia is currently in the midst of its COVID-19 vaccine roll out and is encouraging Australians to get vaccinated to prevent serious illness and death, as well as limit the transmission of COVID-19. Medical experts have indicated 80% of the population must be vaccinated to lift restrictions and open borders so that Australians can ‘safely live with COVID-19’ without overburdening our health system.
Given the recent Delta variant outbreaks, there is now greater urgency than ever to get vaccinated. Many employers are on board with vaccination and are encouraging employees to get vaccinated against COVID-19 as soon as possible to prevent further business disruptions and support a return to a pre-COVID-19 way of life.
The question is – can an employer require its employees to be vaccinated against COVID-19?
The current position
The federal government’s policy is that COVID-19 vaccines should be voluntary for most Australians, and it does not intend passing any laws making vaccinations mandatory in the workplace. The federal government has stated any decision to implement mandatory vaccinations in the workplace is a matter for individual businesses.
This means most employers cannot require their employees to be vaccinated against COVID-19. If an employer wants to mandate vaccinations in the workplace it will be required to establish that it is a ‘lawful and reasonable’ direction given by the employer to its employees.
Is a mandatory vaccination requirement a lawful and reasonable direction?
At this stage, there is no clear legal position about whether a direction by an employer to get vaccinated against COVID-19 is a ‘lawful and reasonable’ direction. Under work health and safety laws, employers have obligations to keep workplaces safe and minimise the risk of exposure to COVID-19.
Whether a direction is ‘lawful and reasonable’ will come down to the employer’s and the employee’s circumstances. An employer should consider various factors before making any decision to mandate vaccinations in the workplace including:
Whether any law requires employees to be vaccinated. For example, in Queensland, a public health direction has been made requiring health service employees working in the aged care sector to be vaccinated.
Whether the terms of an employee’s employment contract or applicable industrial instrument allows or restricts the ability for an employer to issue a vaccination direction.
Whether the employee’s role puts them at greater risk of contracting COVID-19.
Whether the employer’s business operates in an industry where its employees come into contact with members of the population who are more susceptible to contracting COVID-19.
Whether the employee can perform their job without being vaccinated.
Whether the employer has consulted with its employees about mandatory vaccination.
What if an employee refuses to comply with an employer’s lawful and reasonable direction?
An employee who fails or refuses to comply with a lawful and reasonable direction to be vaccinated may be subject to disciplinary action, such as a warning and potentially, termination. This will depend on the employee’s reason for failing or refusing to comply with an employer’s direction to get vaccinated and whether the employer’s direction is justified.
If an employee has a valid medical condition which prevents them from being vaccinated, it is unlikely to be reasonable for an employer to require the employee to be vaccinated. Similarly, employees with disabilities or pregnant employees may be unable to receive vaccines for genuine medical reasons. Some younger Australians are currently ineligible to receive vaccines or have only recently been eligible to be vaccinated, making it either impossible, or more difficult for them to comply with a COVID-19 vaccination requirement. Employers will need to mindful that it may not always be appropriate to strictly enforce a mandatory vaccination requirement and by doing so, this may amount to discrimination.
An employer wanting to take disciplinary against an employee for failing to comply with a vaccination directive will need to ensure that it follows a fair process, as it would with any other employee disciplinary process. If an employer is contemplating the termination of an employee, the employer must be satisfied there is a valid reason for dismissal or face the risk of an unfair dismissal or general protections claim or a discrimination claim.
What does this mean for employers?
In the absence of a clear legal position on this issue, many employers seeking to issue a vaccination directive will face significant challenges in doing so.
Some employers, such as SPC have taken matters into their own hands by mandating the COVID-19 vaccine for its onsite staff and visitors. It is likely this directive (and other similar directives made by Australian employers) will be the subject of legal challenge by employees.
Employers will need to be conscious of privacy laws which may apply to requests for information about an employee’s vaccination status, as this can constitute sensitive information. Employers may have obligations in relation to the use and disclosure of this information and the storage of this information.
It is important employers make their own assessment about the lawfulness and reasonableness of any mandatory COVID-19 vaccination direction given to employees. An employee’s individual circumstances should be carefully considered as there is no ‘one size fits all approach’.
If you require advice about implementing a mandatory vaccination policy in your workplace, please contact a member of our employment law team for assistance.