MANDATORY VACCINATION: CAN I OR CAN’T I?

If Federal or State governments (via public safety orders, or other administrative decrees) mandate vaccination for certain roles or industries, then this would have the effect of determining that vaccination is an inherent requirement of a role within those specific roles or industries. For example, this has been done in relation to staff working in Hotel Quarantine in some states and for those working in aged care. At the time of writing the NSW Government has also announced that it will make COVID-19 vaccinations mandatory for all health workers, with a proposal to require first doses by 30 September 2021. It is expected that other announcements will be made.

However, in the absence of government directions/orders, employers are left to determine this requirement.

Whether a workplace can introduce mandatory vaccination will largely depend on the industry they operate in and on nature of the specific role. For example, employers providing or supporting the health, aged care and disability sectors will likely be able to lawfully mandate vaccination given the close-contact and high-risks in these areas.

However, an employer’s ability to mandate vaccination is likely to extend to any workplaces where people generally work in close proximity with others – whether they are co-workers or members of the public – given the obvious safety risks with transmission of COVID-19, particularly in light of the highly infectious Delta variant.

Also, the requirement for vaccination may be driven by factors outside an employer’s own operations. For example, other businesses may require that their suppliers, customers and visitors are vaccinated. This will have the effect of broadening vaccination being an “inherent requirement”. For example, if airlines only allow vaccinated people access to their services, an unvaccinated employee who is required to fly for work may not be able to fulfil the inherent requirement of their role.

To the contrary, for workers who are currently employed and can do their work completely remotely, without any physical interaction with people, it will be difficult to argue that vaccination is an inherent requirement of the role going forward. However, even for these types of workers, for new hires we consider an employer can make vaccination a precondition of employment.

Note, we anticipate that as the COVID-19 vaccines become more readily accessible many employers will make vaccination a compulsory requirement for all employees whose role involves interactions with others (other staff, customers, and/or the public etc).

In our view, where a vaccination is considered to be an “inherent requirement” of the role, provided the direction is implemented appropriately, the requirement becomes a ‘lawful and reasonable direction’ for employees to be vaccinated. While an employer cannot force any individual to undergo vaccination against their will, the failure to do so can have consequences for the employee’s employment.

Factors that impact on whether a requirement is ‘lawful and reasonable’ could include:

• If there was a contractual (or statutory) impediment to giving this direction – for example if there was an express term in a contract that confirmed vaccinations were voluntary;
• Whether an employee had a medical or religious exemption for not receiving the vaccination (further explored below); and/or
• Whether the company gave its employees adequate opportunity to be vaccinated (are vaccinations available – and if so what types).

The latter point is of particular relevance in Australia, given that vaccines are not currently readily available for all age groups, and there is concern within the community about some vaccines.

The Fair Work Ombudsman (FWO) has recently updated their advice about when employers can require an employee to be vaccinated. In summary the FWO has stated this will be lawful where:

• a specific law (such as a state or territory public health order) requires an employee to be vaccinated;
• the requirement is permitted by an enterprise agreement, other registered agreement or employment contract; or
• it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis.

When undertaking this case-by-case assessment, the FWO has developed a general guide to divide work into 4 broad tiers:

1. 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).
2. 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).
3. 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).
4. 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).

While this is guidance material only, and not based on any legislative change, nor will necessarily be followed by any court or commission, we do generally agree that with this guidance. It confirms that employees performing work within Tier 1 or Tier 2 can be directed to be vaccinated.

For employees performing Tier 3 we consider mandating vaccines is also likely to be lawful and reasonable providing vaccines are readily available.

It will be less likely that it can be mandated for Tier 4 work – but this still may depend on individual circumstances.

If an employee fails to follow a lawful and reasonable direction to be vaccinated and is therefore unable to fulfil an inherent requirement of their position, they can be subject to disciplinary action, such as unpaid suspension or termination of employment.

If the employee refuses to be vaccinated based on a protected attribute under anti-discrimination laws, such as a genuine medical reason, pregnancy (if there is medical evidence of vaccine risks) or religious belief or activity, the employer can only take action against them if it does so on the basis of vaccination being reasonably necessary to protect the health and safety of any person, or the public generally. If an employer wishes to make vaccination a mandatory requirement, they must prove how this health and safety exception applies. In our view, most employers will be able to demonstrate that this health and safety exemption applies to them.

That is in many cases, even if the employee refusing to be vaccinated can point to a “protected attribute” under discrimination law, they may still be unable to perform an inherent requirements of their role.

If the employee is refusing to be vaccinated based on their preferred choice of vaccine (for example, Pfizer) not being readily available, but otherwise have indicated a willingness to get vaccinated once it becomes available, the employer is unlikely to have proper grounds to take action against the employee, unless there is contrary public health advice. In our view, whilst an employer would be able to mandate vaccinations, it is unlikely to have the power to mandate the type of vaccine an employee should get. In this type of situation, there may be a frustration of the employment due to reasons out of the control of either party (i.e. the employee cannot work because they are unvaccinated, but not due to their own fault). This may lead to the employee being suspended (without pay) or allowed to access their leave entitlements until they are able to get vaccinated. If employers were to adopt this approach, it may also force the Government to expediate and place further priority on getting more doses or certain vaccines.

An alternative may be to impose other conditions on the employee until they are vaccinated. This may include restrictions on use of lunch rooms, or additional PPE requirements at the workplace (assuming the workplace is permitted to remain open).

A further issue is what employers can do if an employee refuses to get vaccinated because they hold an ‘anti-vax’ belief. This belief in itself is not likely to provide a ground for an employee to refuse vaccination as the protected attribute of ‘political belief or activity’ has been interpreted narrowly and it is unlikely to apply to people who are simply opposed to vaccines or who rely on pseudo-science. As outlined above, even if anti-vax was considered a “political belief” – we consider employers would still be able to indicate that an unvaccinated person could not meet the inherent requirement to work safely.

With regard to employees who are reluctant to be vaccinated, we recommend employers should adopt a sensitive approach, and seek to understand the reasons. There are people who may hold this view out of genuine fear of any injection, or may have genuine fears due to inconsistent information in the media. For example while the Pfizer vaccine appears to be the vaccine of choice in Australia – in the United States the FDA only gave this vaccine full approval in the last week of August 2021.

If an employee is terminated for refusing to get vaccinated, they could bring a discrimination / general protections claim, or an unfair dismissal claim, and suspensions without pay could lead to a “constructive dismissal” claim. Please note, in a number of recent decisions of the Fair Work Commission where a reason for termination related to a refusal by employees to undergo a flu vaccine (in aged care and childcare settings), it has been held that requiring a flu vaccine was a lawful and reasonable direction. While these cases turn on the facts, we consider that the Commission may adopt a similar position in relation to COVID-19 vaccinations. See here for our article which discusses these decisions.

Ultimately, if you have an employee who has indicated that they will refuse the vaccine, we recommend you contact us to obtain tailored legal advice.

As vaccination status is not a protected attribute under the Equal Opportunity legislation, we consider employers can ask this question of prospective employees. If the answer is ‘no’ and no other reason is provided by the employee as why they are not vaccinated, employers may decide not to employ the candidate for that reason. For the reasons set out above we consider the risk of a discrimination claim will be low.

Further to this, the Australian Government recently confirmed that employers are entitled to ask employees whether they are vaccinated. It is not a breach of privacy obligations to seek this information.

As outlined above, all employers have a responsibility to ensure so far as is reasonably practicable the health and safety at work of their workers. This duty extends to reducing the risk of COVID-19 transmission in the workplace.

SafeWork Australia has also released guidance material outlining that whether an employer should require their workers to be vaccinated depends on the particular circumstance and factors that need to be considered including:

• Is the Australian Health Protection Principal Committee recommending COVID-19 vaccinations for all workers in your industry?
• Will workers be exposed to the risk of infection as part of their work?
• Do workers work with people who would be vulnerable to severe disease if they contract COVID-19?
• What is the likelihood that COVID-19 could spread in the workplace?
• Do workers interact with large numbers of other people in the course of their work that could contribute to a ‘super-spreading’ event if your workers contract COVID-19?
• What other control measures are available and in place in your workplace? Do those control measures already minimise the risk of infection, so far as is reasonably practicable?

While taking a slightly different view than the guidance material issued by the FWO, in light of the above, most employers would be able to require vaccination for its workforce.

Relevantly, employers need to:

• be aware of their paramount occupational health and safety obligations to all workers and visitors to their workplace;
• assess whether mandatory vaccination is a reasonable safety measure to reduce the risk of COVID-19 within their workplace, bearing in mind the relevant considerations for the industry, workplace and individual roles;
• review employment contracts and policies to take into consideration any mandatory vaccination requirements;
• if you intend to mandate vaccinations, consult with staff in a meaningful way, including providing information to allay concerns;
• consider offering incentives for staff to be vaccinated – including paid vaccination leave, or other incentives; and
• if you decide not to mandate vaccinations, look at other measures to ensure workplace safety.