COVID-19 Update: Mandatory vaccinations – what can (and can’t) employers do?
Sydney Legal Consulting, September 2021
Qantas, SPC and Telstra have all been in the news recently due to the introduction of vaccination policies across their respective workforces. In this Update, we will examine the issues posed by the implementation of vaccine policies within the workforce and what this will mean for employers, as we embark upon “living with COVID”.
- Can employers mandate that all employees are vaccinated?
In short, it depends. Under Work Health and Safety laws, employers have a duty to provide a safe workplace, and many are relying on this to mandate vaccinations where possible. But how far can a mandate extend? Applicable legal thresholds will vary across different types of workers. Essentially, the higher the COVID-19 exposure risk to which a worker is subjected, the more likely an employer can make vaccination compulsory.
There are some industries where the relevant State or Territory government has implemented Public Health Orders, making vaccination compulsory. For example, quarantine, construction, health and aged care sectors in NSW are currently subject to such orders.
For employees who do not fall under these orders, an employer may direct them to be vaccinated when it is “lawful and reasonable” to do so. What is considered lawful and reasonable will ultimately require an assessment of what can be deemed necessary and proportionate in relation to the specific circumstances of an employee’s work context. A number of factors will be considered, including (for example) the inherent requirements of the role, where an employee is located, whether they can work from home, their proximity to a designated “hotspot”, vaccine availability and whether other precautionary measures (e.g. the wearing of PPE, social distancing and testing) can be implemented.
The Fair Work Ombudsman (the FWO) recently published guidance (not legally binding but very useful) to assist employers in determining whether mandating vaccines across their workforces would be considered reasonable. Below are the “Tiers” of work, with mandates across Tiers 1 and 2 most likely to be considered reasonable, and compulsory vaccination across Tier 4 likely to be considered unreasonable. Tier 3 will require a consideration of the specific facts around both the context of employment and the COVID-19 situation at that time:
- 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).
- Can employers implement a vaccination policy?
Yes, however there are two important issues to consider:
- a “blanket” policy across an entire workforce is unlikely to be enforceable; and
- it is important to consult with your employees before implementing such a change.
It is imperative that a vaccination policy accounts for different types of workers and their relative levels of risk, as outlined in the FWO tiers, rather than implementing a “one size fits all” policy. It is interesting to note that both Qantas and SPC have mandated for all workers to be vaccinated, whereas Telstra has made vaccination compulsory only for “frontline” workers. The FWO has emphasised that any policy developed by an employer will need to include scope for the employer to consider each employee’s circumstances, including whether they have a protected reason for not being vaccinated (for example, a medical or religious reason).
In relation to consultation, under WHS legislation, and most modern Awards, employers have consultation obligations in relation to significant workplace change. Interestingly, before introducing its vaccination policy, Qantas consulted (in part) by way of surveying its workforce and received an almost 75 per cent approval rate for imposing compulsory vaccinations for Qantas staff.
In addition to satisfying an employer’s legal obligations, consultation also serves as a useful mechanism to sound-out any concerns staff members may have with such a policy. Ideally, employers can address these concerns proactively, and reduce the risk of employee (or union) action at a later date.
- Can employers incentivise/encourage employees to get vaccinated?
Yes. Employers are encouraging employees to be vaccinated by a number of measures ranging from providing approved information about how to access vaccinations, to offering leave, vouchers and other rewards to employees who are fully vaccinated. The Therapeutic Goods Administration (TGA) has provided employers with guidance on how to provide approved information relating to the vaccine (for example, brand names cannot be used), and on what may be offered as incentives (for example alcohol cannot be offered in a manner which encourages excessive drinking).
- Can we require proof of vaccination?
Yes, where vaccination is mandatory. Where an employer has mandated that employees are vaccinated (for example FWO’s Tier 1 employees), they may ask for proof of full vaccination. Immunisation history or COVID-19 vaccination certificates are likely to be considered acceptable evidence.
Where an employer has not required employees to be vaccinated, they may ask for proof of vaccination but cannot demand it.
Employers should be mindful that vaccination status will be considered sensitive information under the Privacy Act 1988 (Cth) and due care should be given as to how information is collected and stored.
- What other issues should employers be aware of?
Whether employers implement a vaccine policy by mandate or by encouragement, they should be aware of the inherent risks such a scheme may give rise to, including:
- Potential discrimination: it is unlawful to discriminate on the basis of a number of protected grounds (age, pregnancy, religious and political beliefs), some or all of which could be tied to vaccine status.
- Refusals: some staff may refuse to be vaccinated and these refusals should be treated with due process and care. As refusals may be related to protected areas of discrimination, employers should be prepared to take a considered view on when and whether to impose vaccination policies on individuals.
- Injury: as we are all aware, there can be rare, but significant, side effects experienced following any vaccination, including those for COVID-19. The Commonwealth government has announced that from 6 September 2021, a no-liability insurance scheme will cover individuals suffering injury or loss of income directly resulting from the vaccine, for losses above $5000. The scheme has been backdated to include claims from 22 February 2021. How this scheme will interact with state-based workers compensation is as yet unclear, although it will presumably alleviate pressure on those schemes, particularly in relation to employees who have suffered injury as a result of a workplace-mandated vaccine.
Mandatory vaccination is just one of the legal challenges the COVID-19 pandemic has forced employers to rise to. It will not be surprising if, in the near term, an employee or union tests the limits of mandatory vaccine policies at the Fair Work Commission. If this occurs, it will add to our collective understanding of how far the law will extend to protect both employers and employees as we adjust to and shape our “new normal”. In the meantime, we shall monitor and provide updates on this issue as it progresses.
Contact:
Kate FitzSimons
Senior Employment Lawyer and Employment Relations Specialist
September 2021
kate@sydneylegalconsulting.com.au
www.sydneylegalconsulting.com.au
