7 essential issues for employers when considering vaccine mandates for employees
by Sally Woodward and Norah Seddon
August 17, 2021
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Amidst the current COVID-19 wave, with more than half Australia’s population back in lockdown, many say that vaccination is key to ending snap lockdowns and opening up Australia. Employers need to be agile as they navigate the legal, health and operational nuances of returning employees safely back to workplaces. They also need to collaborate with their people to achieve any vaccination targets they hope to achieve.
Australian employers can help the government reach its vaccination targets, for the benefit of all Australians. This assistance could take the form of employers setting up their own vaccine hubs, making their premises available for vaccination centres, or making vaccines available for their employees and families (in the same way they currently do for flu vaccines).
Yet some tough questions remain for employers:
- Could (and should) we make vaccinations compulsory for our workforce?
- What recourse might we have if an employee refuses to be vaccinated?
- Can we meet our health and safety obligations (to our people, customers and suppliers) if we have unvaccinated workers?
Such questions raise a multitude of ethical, legal and operational dilemmas for which there are no easy answers. But employers must grapple with these issues and make some informed decisions as soon as possible.
Health experts are clear that mass vaccination is a necessary part of providing long-term protection against the virus. For some workforces, this offers the best hope of returning to a semblance of ‘normal’. In the US, several companies (e.g. Netflix, Walmart, Saks Fifth Avenue, Morgan Stanley, Uber, Facebook and Google) have announced that their employees must be vaccinated in order to come into the workplace. Locally, SPC was the first Australian company to announce that COVID-19 vaccines will be mandatory for all employees and contractors.
Politically, the issue of mandatory vaccinations has been hotly debated. But the federal government has said that it is up to employers in the confines of the current laws to decide whether to mandate vaccination.
Only in the rarest of circumstances?
Earlier this year, regulators such as Safe Work Australia and the Fair Work Ombudsman stated that only in the rarest of circumstances can an employer mandate that employees be vaccinated. This approach was consistent with the federal government’s broader inoculation policy which supported voluntary vaccination.
However, since then the highly contagious Delta variant has seeded in several communities, causing case numbers to rise. This is forcing many employers to recalibrate their COVID-19 responses and consider mandating vaccinations. As a result, the Fair Work Ombudsman has updated its earlier guidance, and has included a four tier system intended to provide clarity as to which industries/roles it might be considered reasonable for employers to mandate vaccinations. Safe Work Australia has also announced that it is updating its guidance in relation to mandatory vaccinations.
Although the updated guidance from the Fair Work Ombudsman and Safe Work Australia is expected to provide employers with some additional comfort, the guidance is not legally binding and will not detract from an employer’s underlying legal obligations. Therefore, to determine whether mandating vaccinations is lawful, outside of a Public Health Order, an employer must still consider a myriad of interconnecting and sometimes overlapping obligations. Some of these are explored below.
1. Workplace Health & Safety (WHS) obligations
Employers have a very clear obligation to take reasonable steps to ensure employees’ health and safety at work. They also have an obligation to protect the safety of visitors to their premises, including clients and customers. This should include eliminating or minimising the risk of exposure to COVID-19.
But before concluding that mandatory vaccination is necessary, employers should conduct a risk assessment to evaluate the specific nature of the risks that workers face. In doing so, they must have regard to their specific industry and the nature of particular roles.
Employers should also assess what controls they can put in place to remove or mitigate those risks. For example, broader measures such as regular hand washing and sanitising, along with social distancing, may be more appropriate than mandated vaccination.
Safe Work Australia provides clear guidance on the factors to consider when conducting a risk assessment. Questions to ask include:
- What’s the likelihood that COVID-19 could spread in the workplace?
- Do employees have to work in close proximity to each other?
- Is there a risk that employees could be ‘super spreaders’ because of the number of people they interact with?
- What other control measures can be implemented if there is a particularly vulnerable worker?
- Do employees work with people who are vulnerable to severe disease?
- Does the Australian Health Protection Principal Committee (AHPPC) recommend mandating COVID vaccinations for all workers in the employer’s industry?
- Do any Public Health Orders require compulsory vaccinations?
Assuming that an employer has a strict COVID-19 protocol in place (and in the absence of any Public Health Orders mandating vaccines) it is unlikely that an employer would be deemed to have breached its WHS obligations if it does not mandate vaccinations. However, the fact that an employer has not breached its WHS obligations does not absolve it from all liability in respect of workplace injury. If an employee were to contract COVID-19 at work, they could still be entitled to workers’ compensation (which could result in an increase in workers compensation premiums).
Even if an employer is not required to mandate vaccinations to comply with its WHS obligations, an employer may want to do so to provide additional comfort to employees and customers, and to try and reduce the risk of COVID-19 being brought into the workplace.
2. Contractual rights
So, does an employer have the contractual right to require employees to be vaccinated? And what are the potential consequences for employees who refuse?
Generally speaking, employers have an implied right to give employees a reasonable and lawful direction regarding their employment. Failure to follow such a direction can be a disciplinary matter. The question, then, is whether requiring an employee to be vaccinated is reasonable and lawful.
To determine ‘reasonableness’, employers must consider all circumstances in each case, such as:
- the employer’s industry
- the employee’s role and individual circumstances
- whether the inherent requirements of the role necessitate vaccination (e.g. required to travel overseas, or to enter premises where vaccinations are necessary)
- whether the employee poses a significant risk to themselves or the broader community if they are not vaccinated
- the extent of community transmission in the location where work is performed
- the effectiveness of the vaccine in reducing the risk of transmission against the COVID-19 and any variant
- whether the role can be changed.
The greater the adverse impact that COVID-19 has on the Australian population and economy, and the greater the risk of community transmission in a particular area, the more likely it is that a requirement for employees to be vaccinated will be deemed reasonable.
So, if an employer wants to require employees to be vaccinated, what action can it take if an employee refuses the vaccine? If it is a reasonable direction, then disciplinary action (up to and including termination of employment) might be lawful and indeed the Fair Work Commission has held that termination of employees who refuse the flu vaccination is lawful. But ultimately, each case will have to be determined on its individual circumstances.
3. Discrimination
Employees may refuse to get vaccinated for a range of reasons. They may have an underlying health issue, be pregnant, or object on religious grounds. In such circumstances, mandating the vaccine could constitute unlawful indirect discrimination unless the employer can prove that the requirement to be vaccinated is a reasonable one.
Before taking action against an employee who refuses vaccination, employers should first understand why they are refusing. If it’s because of an underlying health issue, employers also have a broader obligation under federal and state discrimination legislation to make “reasonable adjustments” to a role to enable an employee to perform their duties. Failure to make reasonable adjustments would, in itself, constitute unlawful discrimination. Reasonable adjustments might include, for example, removing an employee from customer-facing duties, removing overseas travel, or allowing an employee to work from home.
4. Industrial implications
Employers have an obligation to consult employees in relation to workplace health and safety. The introduction of a mandatory vaccination requirement is likely to require consultation, not only with employees but also union representatives (where applicable).
Earlier this year, the Australian Council of Trade Unions (ACTU) and other unions stated they were likely to object to any employer’s attempts to mandate vaccinations in the workplace in the absence of a public health order. In response to SPC’s recent announcement that it intends to introduce mandatory vaccinations for all employees and contractors, the Australian Manufacturing Workers’ Union (AMWU) has been vocal in its opposition. The union has accused SPC of failing to consult in relation to the measure, and while SPC is proposing a staggered introduction of the vaccine obligation, the AMWU has raised concerns about mandatory vaccinations in the context of Australia’s limited availability of vaccines.
In short: Employers in unionised workplaces should carefully consider the industrial ramifications of introducing mandatory vaccinations.
5. Privacy
When employers mandate vaccines, they will have access to sensitive health information in relation to their employees’ or contractors’ vaccination status. Therefore they need to be aware of – and comply with – all privacy obligations in relation to how they hold and use such information.
6. Workplace culture
Mandatory vaccination raises more than just legal questions. Workplace culture may suffer if employers are seen to take draconian steps or fail to consider employees’ fears or concerns. Taking an authoritarian ‘top down’ approach can sit at odds with the values of progressive, contemporary organisations.
This can raise substantial risks for employers who are seeking to hire and retain talent, at a time when demand outstrips supply for many specialist skills in the jobs market. Anything that detracts from a mutually supportive workplace culture can damage an employer value proposition and/or prompt an exodus of high performing people.
7. Co-create the solution with employees
On the flipside, workplace culture can actually be enhanced when employers take a more collaborative approach with employees.
The Therapeutic Goods Administration recently updated its guidance to make it clear that employers can develop their own materials to communicate with their employees and encourage vaccinations. Employers can explain the benefits of vaccination and offer incentives to people who have been fully vaccinated, subject to certain limitations.
Many organisations have announced that they will allow their employees paid time off work to have the vaccine, and some are providing special leave if employees need additional time to recover from any side effects connected to the vaccine. Other employers are offering monetary incentives or donations to not for profit organisations to support the vaccination of those in other countries.
To make it more convenient for their employees to be vaccinated, some employers are even planning to make vaccines available to employees and families through their workplace or corporate hubs.
Stronger together
When people unite around a common purpose, they can achieve anything – and that includes widespread vaccinations. So, whatever an employer’s vaccination aspiration is, they will only succeed when they secure ‘buy in’ from their people. This requires a well-communicated vaccination policy that aligns with the organisation’s values.
If employers decide to promote or mandate vaccinations, they should allow time in their plans for employees to input into the process. They should also remain agile and prepare contingencies, given that the COVID-19 pandemic has a tendency to deliver unexpected twists and surprises. A respectful workplace culture is most likely to foster the necessary resilience to safely steer through the testing times ahead.
