The topic of whether employers can mandate vaccinations has been trending in recent months. Companies such as Qantas and SPC were one of the first reported to direct their employees to be vaccinated in order to return to work. Since then, many other organisations have followed suit. Today, most businesses have questioned whether the same requirement for vaccination should apply to their workforce as lockdown restrictions slowly ease, and their employees prepare to return to the workplace.
Can I mandate vaccinations for my staff?
Before you can mandate vaccinations for your employees, start by asking yourself the following questions:
1. Is there a mandatory requirement under a State or Territory law or public health order?
2. Is there a term in an employment contract, enterprise agreement or registered agreement that requires an employee to be vaccinated against a particular disease?
If the answers to either of the questions above is “yes”, you have a legal basis for mandatory vaccination. On October 7th, Victoria became the first State to issue a direction for mandatory Covid vaccinations for workers across a broad list of industries which extends far beyond the original public health order covering aged care, construction, healthcare and education sectors. Employers are now also required to collect, record and hold information about their workers’ vaccination status.
If the answer to the above questions is “no”, there is no legal basis for mandatory vaccination for employees. That said, employers may still require their workers to be vaccinated, but this direction must be lawful and reasonable, and could take the form of a workplace policy.
What is Lawful and Reasonable Direction?
While it is more clear cut to establish whether a direction is lawful, what constitutes reasonable direction is where the debate lies. Often this may be found in the form of a workplace policy, but it will ultimately be dependent on the facts and assessed on a case-by-case basis.
Central to this assessment is the level of risk of transmission and infection of Covid-19 in the workplace.
For employees who have no contact with other staff or customers, it is unlikely that a direction to be vaccinated will be deemed reasonable.
Similarly, if the inherent requirements of a job can be done safely without the need for vaccination, then a direction may not be reasonable in the circumstance.
However, if an employee’s job requires them to interact with elderly people, sick people, or large numbers of the general public, then it is simpler to demonstrate reasonableness.
Guidance from the Fair Work Ombudsman
The Fair Work Ombudsman has established a range of considerations which may be relevant when deciding whether a direction to an employee is reasonable. In addition, they have developed a framework that divides up work into 4 broad tiers to be used as a guideline.
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 (eg: hotel quarantine or border control employees).
Tier 2 work: where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (eg: health care or aged care workers).
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 (eg: stores providing essential goods and services. This may cover retail and hospitality).
Tier 4 work: where employees have minimal face-to-face interaction as part of their normal employment duties (eg: where they are working from home).
It is easier to establish reasonable direction for employees performing Tier 1 or Tier 2 work given the level of risk is higher of being infected or transmitting Covid-19 to others. However, an employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of the coronavirus.
For employees performing Tier 3 work, it is less straightforward. One factor determining reasonableness is the community transmission levels in the area in which the business operates.
In areas of no community transmission, it is harder to justify a direction to employees to be vaccinated.
Conversely, in areas of high community transmission, a direction for vaccination is more likely to be deemed reasonable. The pace at which the Delta variant spread in NSW and VIC just shows how quickly circumstances can change and impact this notion of reasonable direction.
What if my employee objects to mandatory vaccination?
The rules of procedural fairness apply in order to manage an unfair dismissal risk. Employees must be allowed to raise an objection to mandatory vaccination. However, they will need to produce solid medical evidence ideally from a specialist, with cogent reasons why they cannot be vaccinated.
Employers should carefully consider this information, and explore alternative scenarios that would avoid termination of employment. Such scenarios may include: alternative roles; taking leave; or regular covid testing.
Under the new rules in Victoria, employers of workers in the listed industries must not permit a worker who doesn’t meet the requirements for vaccination to enter the work premises unless they have a valid medical exemption. Failure to do so, may result in hefty penalties.
What other measures can businesses adopt to reduce the risk or Covid-19 transmission and infection in the workplace?
Vaccination is but one of a range of control measures aimed at reducing the chance of infection or transmission of Covid-19 in the workplace. Other measures include social distancing, deep cleaning and good hygiene practices. If employers enforce mandatory vaccinations, they must also ensure that these other control measures are in place.
Since mandatory vaccination is an ever-evolving topic, it’s imperative to stay abreast of changes in the legislation, public health orders or guidelines governing this area. Employers should obtain advice if they are considering making Covid 19 vaccines mandatory in the workplace.
For further information, please refer to the link below:
Nick Hedges is the founder of ResolveHR, a Sydney-based HR consultancy specialising in providing workplace advice to managers and business owners. He recently published his first book, “Is Your Team Failing Or Kicking Goals – Take control of your people and their performance”. It is a practical response to the most pressing HR challenges, which can be found at https://resolvehr.com.au/.
Disclaimer: The contents do not constitute legal advice and does not cater for individual circumstances. The information contained herein is not intended to be a substitute for legal advice and should not be relied upon as such.