Nicola Nygh and Ekaterina Zotova
As the Delta variant of COVID-19 spreads in Australia, and New South Wales prepares to exit lockdown and learn to ‘live with the virus’, it is timely to consider when employers can require employees to be vaccinated against COVID-19. Nicola Nygh and Ekaterina Zotova provide some guidance by way of questions and answers about when an employer can require employees to be vaccinated, what steps an employer should take to make vaccinations mandatory, and the rights and duties of employees.
Is vaccination mandatory?
Although Australian government policy on vaccine remains that vaccination is not mandatory and individuals may choose not to vaccinate[1], employees may be required to be vaccinated by:
Who is required to be vaccinated by state public health orders?
It is mandatory for both employers and employees, to comply with any public health orders.
As of 16 September 2021, the following employees are required to be vaccinated under New South Wales public health orders:
If public health orders are not applicable, can an employer require employees to be vaccinated?
An employer has a primary duty of care for its staff and must, so far as reasonably practicable, ensure the health and safety of its employees and other workers in the workplace. An employer must also, so far as reasonably practicable, ensure that the health and safety of other persons, including customers and members of the public, is not put at risk by the conduct of the business[3]. Breach of these duties may amount to a crime and can result in substantial fines or imprisonment of the employer’s officers[4].
In discharging its duty of care, an employer may make directions to its staff. Where an employer makes a direction that is both lawful and reasonable, an employee is contractually obliged to comply with the direction.
For a direction to be lawful, it must comply with the employment contract, any applicable award or agreement, and any Commonwealth, state or territory law that applies (for example, anti-discrimination law and occupational health and safety laws). If the employer’s direction does not contravene its legal obligations, such direction is lawful.
To determine whether a direction is reasonable, it is necessary to consider the circumstances of the specific case. Some guidance can be gleaned from recent decisions of the Fair Work Commission which held that directions by childcare[5] and aged care[6] providers requiring that staff be vaccinated for influenza were lawful and reasonable. In deciding that the direction by a childcare provider was reasonable, the Fair Work Commission considered, among other things:
In determining whether it is reasonable to direct staff to be vaccinated against COVID-19, the Fair Work Ombudsman has suggested that an employer should assess a range of factors, including:
In our view as New South Wales opens up and COVID-19 spreads, a direction to be vaccinated to employees who are not working from home and who interact with other employees and other people in the course of their work is increasingly likely to be reasonable.
Should employers consult with employees before requiring vaccination?
In many cases, employers will be required by law to consult with employees, unions or other representatives before implementing a mandatory vaccination policy. Even if consultation is not required by law, consultation and cooperation in the workplace is considered best practice[9].
Consultation clauses in all awards and enterprise agreements require an employer to consult with employees before implementing significant workplace changes. Employers may also be required to consult under some registered agreements, employment contracts and workplace policies. Work health and safety laws also require employers to consult on work health and safety matters with any health and safety representatives and employers may incur fines if they fail to consult.[10]
Can employers develop their own material to communicate with employees about vaccination?
Clearly communicating the benefits of vaccination and incentives for vaccination can be very effective in encouraging employees to be vaccinated. These communications must be carefully considered because the promotion of therapeutic goods, including vaccines, is highly regulated in Australia. In July 2021 the Therapeutic Goods Administration (the TGA) issued legal permission (the Permission) allowing corporate entities and others to create their own material to promote COVID-19 vaccines provided:
The Permission is effective until 31 December 2022.
Can employers offer free beer to vaccinated employees?
Under the Permission, any party can offer valuable consideration to people who have been fully vaccinated under the national COVID-19 vaccination program subject to certain conditions. The offer must include a statement that vaccination must be undertaken on the advice of a health practitioner. The offer must not be included in a communication informing staff about logistic details for a vaccination with an approved vaccine provider that has partnered with the employer. Alcohol can be offered as a reward but the offer must not encourage excessive or rapid consumption of alcohol or have a strong or evident appeal to minors and the alcohol must be served consistent with the responsible service of alcohol.
Do privacy obligations prevent employers from implementing a mandatory vaccination policy?
Privacy obligations should not prevent an employer from implementing a mandatory vaccination policy. However, employers must comply with their privacy obligations when collecting, using, storing and disclosing information about employees’ vaccination status and other employee health information. Such information is sensitive health information and higher privacy protections apply under the Privacy Act 1988 (Cth). Employers that require all or some employees to be vaccinated should implement processes to comply with their privacy obligations[12].
Will a mandatory vaccination policy amount to unlawful discrimination?
Strict rules requiring vaccination of all staff including staff with disabilities, medical conditions or who are pregnant may amount to indirect discrimination under the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and the Age Discrimination Act 2004 (Cth). An employer will have a defence to a claim for indirect discrimination if the employer can prove that the requirement that all staff be vaccinated was reasonable in the circumstances of the case. Whether a requirement is reasonable will depend on all the relevant facts including the nature of the workplace and the employee’s individual circumstances. A defence may also be available to an employer if it can show that it is an inherent requirement of the employee’s role that they be vaccinated against COVID-19.
Employers also have express duties to make reasonable adjustments for people with disabilities in the workplace. Reasonable adjustments are not required if they would impose an unjustifiable hardship on the employer but the threshold to establish unjustifiable hardship is very high.
Discrimination on the basis of religious beliefs is unlawful in some states and territories and can also engage the general protections provisions in the Fair Work Act 2009 (Cth). As a result, employers may also need to accommodate any genuine religious objections to vaccination.
Accordingly, any mandatory vaccination policy must allow employees to raise grounds for not being vaccinated, for the employer to consider whether those grounds are legitimate and whether reasonable adjustments can be made for an employee who has a legitimate reason for not being vaccinated. Reasonable adjustments may include allowing the employee to work remotely or implementing stricter controls to ensure the safety of the employee and other persons.
What is a legitimate reason to refuse to be vaccinated?
An existing medical condition that prevents the employee from being safely vaccinated will be a legitimate reason not to be vaccinated. In some jurisdictions, a genuine religious belief may also amount to a legitimate reason. If an employee relies on a medical condition, they will need to produce medical evidence to establish that the condition prevents them from being safely vaccinated. The Fair Work Commission has held that a childcare worker who produced a note from her general practitioner stating that the worker had informed the doctor that she was sensitive to vaccines was not a legitimate reason for the worker not to be vaccinated against influenza.[13]
If the employee has a legitimate reason not to be vaccinated, the employer must consider whether reasonable adjustments can be made to accommodate the employee or whether the requirement to be vaccinated is an inherent requirement of the employee’s role.
Can an employer take disciplinary action if an employee refuses to get vaccinated?
If an employee refuses to be vaccinated in breach of a public health order or a lawful and reasonable direction, then the employer may be able to take disciplinary action including termination of employment. The steps which an employer can take will depend on the circumstances of the particular case and the terms of the relevant agreements, awards, employment contracts, policies and public health orders. Each case will depend on its own facts. However, it is significant to note that the Fair Work Commission has upheld the termination of employees of childcare and aged care providers who refused to be vaccinated against influenza[14].
Employers should obtain legal advice and ensure they follow a fair process and have valid reasons for termination. If they fail to do so, employers may breach the unfair dismissal or adverse action provisions in the Fair Work Act 2009 (Cth).
Conclusion
COVID-19 and the Delta variant are likely to become increasingly prevalent in the Australian community. As this happens and assuming effective vaccines are readily available to employees, it is increasingly likely that a direction that employees be vaccinated if they attend a workplace where they have contact with other employees or members of the public is lawful and reasonable. However, such a direction may cease to be lawful and reasonable if circumstances change, for example if a new variant that is resistant to available vaccines becomes prevalent.
It takes time for employers to consult, develop, address privacy obligations, and implement a policy for mandatory vaccination and for employees to obtain two doses of the vaccine. Employers who wish to implement such a policy should start the process now.
Disclaimer: Please note that this note is a summary only and therefore is general in nature. Specific advice should be obtained in relation to specific problems and issues.
References:
[1] https://www.health.gov.au/sites/default/files/documents/2020/12/covid-19-vaccination-australian-covid-19-vaccination-policy.pdf
[2] See list of state and territory public health orders at https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations#legislation-and-public-health-orders
[3] Section 19 of the Model Work Health and Safety Act (the WHS Act), implemented in all Australian states and territories except Victoria and Western Australia
[4] Sections 30-34D of the WHS Act
[5] Barber v Goodstart Learning [2021] FWC 2156
[6] MS Maria Corazon Glover v Ozcare [2021] FWC 2989
[7] Barber v Goodstart Learning [2021] FWC 2156 at [314] – [347].
[8] Factors identified by the Fair Work Ombudsman at https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations#legislation-and-public-health-orders
[9] See eg sections 70-71 of the WHS Act
[10] Therapeutic Goods (Restricted Representations – COVID -19 Vaccines) Permission (No 3) 2021 available at https://www.tga.gov.au/advert-exempt/therapeutic-goods-restricted-representations-covid-19-vaccines-permission-no-3-2021
[11] Therapeutic Goods (Restricted Representations – COVID -19 Vaccines) Permission (No 3) 2021 available at https://www.tga.gov.au/advert-exempt/therapeutic-goods-restricted-representations-covid-19-vaccines-permission-no-3-2021
[12] See guidance on this issue by the Office of the Australian Information Commissioner at https://www.oaic.gov.au/privacy/guidance-and-advice/coronavirus-covid-19-vaccinations-understanding-your-privacy-obligations-to-your-staff/
[13] Barber v Goodstart Learning [2021] FWC 2156 and MS Maria Corazon Glover v Ozcare [2021] FWC 2989
[14] Eg Barber v Goodstart Learning [2021] FWC 2156; MS Maria Corazon Glover v Ozcare [2021] FWC 2989; Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818
Illustration by Daniel Schludi on Unsplash
Date: 17 September 2021
