No jab, no job: Can and should I force my employees to have the COVID-19 vaccine?
The COVID-19 vaccination – it’s all anyone has been talking about recently, whether it be on online, on the radio, in the newspaper, or in daily conversations at your workplace, or even at your family dinner table. Rightly so! It’s a conversation that needs to be had, especially with so many people in Australia currently in lockdown. The vaccine stands as the best chance we have to protect ourselves and the community against COVID-19. What has been making the news a lot recently, is whether your employer can (and should) actually force you, as an employee, to have the COVID-19 vaccine. Some employers have gone ahead and done it – for example, SPC was the first Australian non-health care company to make the vaccination mandatory for staff. Other businesses have soon followed, however there is some apprehension (and understandably so) as the law is not on the employer’s side. The Australian Government’s current stance is that the COVID-19 vaccination is free and voluntary, with the aim of having as many Australians vaccinated as possible.
At the moment, there are various factors that may influence the answer to that question of whether your employer can introduce a mandatory COVID-19 vaccination policy, including the workplace, the work type, the actual individual and even vaccine availability.
So… can you force your employees to be vaccinated against COVID-19? Is it even legal?
In short, you can, but only in certain circumstances where there is a law that requires an employee to be vaccinated, an enterprise agreement, other registered agreement or employment contract permits the requirement and where it would be lawful and reasonable to do so. This August, the Fair Work Ombudsman provided some guidance as to what might and might not be considered reasonable. They said that directing employees who work with people more likely to be infected, who are more vulnerable to COVID-19 or who interact with colleagues and/or the public in places of community transmission to get vaccinated, is more likely to be considered reasonable. For example, hotel quarantine workers, border control workers or aged care workers fall into this category. There have been rulings by the Fair Work Commission in unfair dismissal cases, that confirm it is reasonable in sectors such as aged care and childcare, for employers to require vaccination as an employment condition.
In contrast, where there is limited in-person interaction, or where interaction with colleagues and/or the public is in a place where there has been no community transmission for some time, is less likely to be reasonable. Although, this is guidance, and is not determinative.
As it is a case-by-case assessment, Fair Work has published a general guide that divides work into 4 tiers:
“Tier 1 work, 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 work, 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 work, 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 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).”*
Directions as to vaccinations and their reasonableness will depend on which tier of work the employee performs, as this corresponds with the level of risk posed by COVID-19 in the respective workplace. However, it is a general guide, and it will still be assessed case-by-case.
Work health and safety obligations are also relevant to determine what is lawful and reasonable, including whether social distancing or masks etc are viewed as sufficient to negate the risk of exposure to COVID-19 in the workplace. Work health and safety laws require consultation with employees and their health and safety representatives about control measures in place to address risks, including policies about COVID-19 vaccinations. However, Safe Work Australia has said that ‘most employers will not need to make vaccination mandatory to comply with the model WHS laws. Although there is an exception where it is required by public health directions (e.g. the Queensland direction that employees in residential aged care be fully vaccinated by the end of October). Both you and your employees need to comply with these orders if they apply to them. In South Australia for example, there are directions that apply to quarantine workers, as well as aged care workers and some essential travellers (from late September).
There also may be protections under anti-discrimination laws that may come into play. This is particularly an issue when there’s no specific law requiring that the employee be vaccinated. As the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and the Age Discrimination Act 2004 (Cth) make discrimination on the grounds of pregnancy, disability and age (respectively) unlawful, and these can be factors influencing an individual’s decision to not get vaccinated, a strict mandatory vaccination policy for employees may run the risk of engaging the ‘indirect discrimination’ provisions in these Acts. This depends on reasonableness – and you, as the employer, will have to prove that it is reasonable. How hard that is to do, is something we won’t know for sure until it is tested.
What should I do as an employer?
Given the muddiness of the waters already, and the fact that this issue is subject to change, your first step as an employer should be to introduce policies to help the teething process and remove any unnecessary barriers that might exist (as we’ve said, some people can’t even access vaccinations yet!). Yes, this does mean that the first step is to assume you can’t mandate it and to try the carrot, not the stick approach first! For example, you might consider providing additional leave or paid time off, access to reliable and current vaccination information, facilitate open communication with your employees, perhaps encouraging them to discuss the vaccine and its risks and health benefits with their doctor, rather than forcing them to get it straight away. Some view providing incentives as a better way to proceed e.g. gift cards or rewards. These can have the added benefit of showing you exactly how many of your employees are vaccinated! Your safest bet is to seek legal advice prior to making anything mandatory. The last thing we need is to unnecessarily lose a large proportion of the workforce in a time where labour shortages are an issue.
Subject to change?
The legal context surrounding this topic is dynamic – it could be flipped on its head by amendments to the Fair Work Act that expressly authorise mandatory vaccination policies. However, this would not go without contention. Whilst there is a clear public health benefit to COVID-19 vaccinations, workers are considered to have the right to “pursue both their material well-being and spiritual development in conditions of freedom and dignity” (The International Labour Organisation’s 1944 Declaration of Philadelphia). Time will tell and the overall picture will become clearer as we see the findings of unfair dismissal claims through the Fair Work Commission, as well as workplace law disputes that make it to the federal courts.
COVID-19 Vaccine Exemption
If you have determined that requiring the COVID-19 vaccine is a reasonable and necessary step to protect your workforce and clients, and you have employees who refuse the vaccine based on personal, medical or religious reasons, you can direct them here: https://www.health.gov.au/resources/publications/atagi-expanded-guidance-on-temporary-medical-exemptions-for-covid-19-vaccines to investigate their rights and obligations.
You can still require all staff, whether vaccinated or not, to follow Public Health protocols and your company’s policies to help maintain safety for themselves, other staff and clients (which may include additional precautions such as continuing to wear a face mask and required PPE).
If you have any other questions about this area that we haven’t covered, please don’t hesitate to contact us.