In light of the continued spread of COVID-19 across the country, employers are asking what they can do to keep their workers and customers safe.
Overseas, mandatory vaccination policies are playing a key role for employers in how they manage the occupational health and safety risks associated with the virus. For example, in New York, all government employees (including police officers and teachers) will be required to be fully vaccinated or be subjected to rigorous weekly COVID-19 testing.1 This approach has also been taken up by large private employers, such as Google and Facebook, who have stated that all employees must be vaccinated before returning to the office.2
In Australia, COVID-19 vaccinations are mandatory for continued work in some industries, such as aged care.3 There are also several other state and territory public health orders requiring vaccinations for certain workers,4 the latest of which will be signed by NSW Health Minister Brad Hazzard in coming days and will make COVID-19 vaccination mandatory for all health workers in the state, with a proposal to require workers to have their first dose by 30 September 2021. The mandate will apply to doctors, nurses, and health staff as well as cleaners, administrative staff and all workers in front-facing roles.5
So, in the absence of any legal requirement for workers to be vaccinated, when can employers implement a mandatory vaccination policy?
Employers who have mandated vaccinations for staff
As many of you will be aware, Shepparton food processor SPC made the decision to mandate all employees, contractors and visitors, citing "the health and wellbeing of all staff and the broader community" as the reason for the decision. The Australian Manufacturing Workers Union (AMWU) has foreshadowed potential legal action against SPC, but it appears that this will likely focus on whether SPC properly consulted its employees over the decision, as opposed to the lawfulness of the direction.
SPC has been followed by Qantas, who announced on Wednesday 18 August that it would require all employees to be fully vaccinated against COVID-19 as part of the national carrier’s commitment to safety.6
In its media release, Qantas confirmed that it would require all of its "frontline employees", including cabin crew, pilots and airport workers, to be fully vaccinated by 15 November 2021, and the remainder of employees by 31 March 2022. It noted that there would be exemptions for those who are unable for documented medical reasons to be vaccinated, which it expects to be very rare.
Interestingly, Qantas's decision to implement a mandatory vaccination policy has reportedly been informed by their employee survey on vaccinations, which collected almost 12,000 responses across its workforce. Qantas has published the high-level findings of this survey, which demonstrates that many of its employees were either already vaccinated or planning to be vaccinated, and that around 75% of respondents thought that it should be a requirement for all employees to be vaccinated and would be concerned if other employees in the workplace were not vaccinated.7
Will directing employees to be vaccinated against COVID-19 be a lawful and reasonable direction?
For most employers, the relevant question about whether they can implement a mandatory vaccination policy is whether it is a "lawful and reasonable" direction. The answer to this question largely depends on the nature and circumstances of the relevant employment.
Until very recently, the prevailing view has been that it is only lawful and reasonable for employers operating in high-risk settings in which employees have direct contact with vulnerable people to mandate vaccinations.
In line with this view, while Safe Work Australia confirmed employers have a duty under work health and safety laws to eliminate or, if not possible, minimise the risk of exposure to COVID-19 in the workplace, it has, to date, held the position that it is unlikely that a requirement for workers to be vaccinated would be considered “reasonably practicable”.8
On 13 August 2021, the Fair Work Ombudsman (FWO) updated its guidance materials in relation to when a direction to vaccinate will be "lawful and reasonable", including via the concept of four different "tiers" of work as it pertains to COVID-19. The FWO states that "employers and employees are encouraged to work together to find solutions that suit their individual needs and workplaces".
Further details of the statement by the FWO can be accessed here.
The tiers of work and the FWO's advice as to whether it will be reasonable to direct a worker to be vaccinated are summarised below:
|
Tier |
Type of work |
Whether reasonable to direct a worker to be vaccinated |
|
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). |
Likely to be reasonable |
|
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). |
Likely to be reasonable |
|
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). |
Whether reasonable will depend on surrounding circumstances such as the prevalence of COVID-19 in the community at the time (and vaccination supply issues would also presumably be relevant) |
|
4 |
Where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home). |
Unlikely to be reasonable |
The FWO has rightly emphasised that any policy will need to have scope to consider each employee’s circumstances, including whether they have a protected reason for not being vaccinated (for example, a medical or religious reason). However, in the same way that employers will likely have employees covered by different modern awards, for example, payroll office workers vs retail workers in customer-facing roles, employers may also identify that their employees fit into a mix of tiers identified in the FWO guidance.
As such, there are several factors that may be relevant when determining whether a direction to a particular employee is reasonable, including:
- the nature of each workplace (for example, the extent to which employees need to work in public-facing roles, whether social distancing is possible and whether the business is providing an essential service)
- the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community
- work health and safety obligations (as outlined above)
- each employee’s circumstances, including their duties and the risks associated with their work
- whether employees have a legitimate reason for not being vaccinated (for example, a medical reason)
- vaccine availability, noting that, in some states and territories, a number of employees may not yet have access to vaccinations (or at least not the ATAGI-preferred COVID-19 vaccine for their age group).
Risks for implementing vaccinations
Employers should be cognisant that anti-discrimination legislation prohibits less favourable treatment of employees because of a protected attribute (e.g. a disability, pregnancy or religious belief).
Although vaccine hesitancy or refusal is not a protected attribute in and of itself, this discrimination risk could arise for employers who take disciplinary action against a person who refuses to get vaccinated on the ground that getting vaccinated puts them at risk because of, for example, their disability (a health condition), pregnancy or because it is contrary to their religious beliefs.
Requiring proof of vaccination
The FWO's guidance suggests that if an employer has provided a lawful and reasonable direction to be vaccinated for COVID-19, it is likely to be lawful and reasonable for the employer to require an employee to provide evidence of their vaccination.
If this information is collected, then it will be important for the employer to also comply with the requirements of the Privacy Act 1988 (Cth).
Next steps for employers
Whether to implement a mandatory COVID-19 vaccination policy will likely be a very complex decision for employers and it is important to recognise that, while significant given its status as the workplace regulator, the FWO guidance is simply its opinion and does not have force of law.
Employers should consider the following factors before implementing a mandatory vaccination policy or issuing a direction to get the jab:
- whether there is a legal obligation in effect that requires its workforce to be vaccinated (for example, under current public health directions or orders)
- whether a direction would be considered "lawful and reasonable", taking into consideration relevant factors identified in this article
- whether the direction should apply to all of an employer's workforce, or a subset of its workforce that may be at a higher risk of interacting with the virus
- what (if any) consultation requirements need to be followed (noting that a mandate to be vaccinated against COVID-19 will almost certainly constitute a "major change" under any applicable industrial instrument)
- what may be a reasonable notice period to require employees to be fully vaccinated
- the privacy implications of requesting staff to provide proof of vaccination
- what action may be taken against employees who refuse to be vaccinated (notwithstanding relevant exceptions).
Employers may also wish to follow in the footsteps of Qantas, and gather further information on their employees' views on vaccination, including how many have already been vaccinated (or plan to be), before making a decision on whether or not to implement a policy.
Other options include looking for ways to incentivise employees to be voluntarily vaccinated, such as offering paid time off to get the jab (as Wesfarmers has done),9 or providing financial incentives on proof of vaccination (as Telstra has recently announced).10
Should an employer go down the path of mandating vaccination (except in exceptional circumstances), we would also recommend considering implementing other measures (including those referred to in the FWO's guidance) to increase the likelihood that the direction will be considered reasonable, including (for example):
- providing leave or paid time off for employees to get vaccinated and offering a period of paid leave for any staff who may become unwell after vaccination (SPC has offered its employees two days)
- helping to ensure employees have access to reliable and up-to-date information about the effectiveness of vaccinations
- where employees don’t yet have access to vaccinations, exploring other options including alternative work arrangements.
If you have any uncertainty about whether mandating vaccination will be considered a "lawful and reasonable" direction in your workplace, you should obtain legal advice specific to your circumstances.
The Workplace Relations and Safety team at Lander & Rogers is available to assist with any queries that you may have regarding COVID-19 vaccinations and associated policies.
Webinar: Australian business leaders in support of mandatory vaccination
In September, Lander & Rogers welcomed more than 650 business leaders from across the country to discuss the legalities of mandatory vaccination in the workplace.
Hosted by Amie Frydenberg, a partner in Lander & Rogers' Workplace Relations & Safety practice, the virtual Q&A session explored a range of issues impacting Australian businesses.
To access a recording of the session, please click here.
1 New York Times, “New York City and California to Require Vaccines or Tests for Workers”, 26 July 2021.
2 Variety, "Google, Facebook Say Employees Must Be Vaccinated Before Returning to the Office", 29 July 2021.
3 At the National Cabinet meeting on 28 June 2021, the Prime Minister and all state and territory first ministers agreed to mandate that at least the first dose of a COVID-19 vaccine be administered by mid-September 2021 for all residential aged care workers.
4 For example, the New South Wales (NSW) Government has issued public health orders preventing people working in specific types of jobs in the NSW Airport and Quarantine Vaccination Program from entering the workplace or providing services if they haven’t received a COVID-19 vaccination (see Public Health (COVID-19 Air Transportation Quarantine) Order (No 2) 2021 and Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021). Similar directions have been issued in Queensland, South Australia, Tasmania and Western Australia.
5 Sydney Morning Herald, "NSW to make vaccinations mandatory for all health workers", 20 August 2021
6 Qantas Group media release, 18 August 2021.
7 Ibid.
8 Safe Work Australia, General Industry Information - Vaccination.
9 Australian Financial Review, "CEOs say carrots, not sticks, should drive vaccinations", 6 August 2021.
10 Australian Financial Review, "What top companies are offering staff to get jabbed", 16 August 2021.
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