Update March 2021: Fair Work Australia has issued some broad guidelines on COVID-19 Vaccinations, and Safe Work Australia has specific vaccination guidelines based on the industry you are in.
With COVID-19 vaccinations rolling out in early 2021 can employers require all employees get a COVID-19 vaccination as a condition of employment?
This is a very vexed question because the issue is at the intersection of public health, employer legal requirements, discrimination, human rights, and the rights to bodily autonomy and medical ethics.
It is true that employers are required to provide a safe workplace for all employees and to have a duty of care towards the clients they serve.
Further, it is also true that all employees must comply with all reasonable and lawful directions of their employer.
However, the ability to mandate vaccinations is not cut and dried.
To help clarify whether a mandatory COVID-19 vaccination is legally acceptable, we can look to other cases that have been before the courts for vaccination matters.
In Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning (November 2020), Ms Arnold applied for unfair dismissal after she was terminated for refusing a mandatory flu vaccination.
While Goodstart permitted exemptions to the flu vaccination on medical grounds, Ms Arnold had refused the vaccination for her personal beliefs and not medical grounds.
While the matter was dismissed as the case was out of time, Deputy President Asbury noted:
“While I do not go so far as to say that the Applicant’s case lacks merit, it is my view that it is at least equally arguable that the Respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason. Prima facie the Respondent’s policy is necessary to ensure that it meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/or medical conditions. It is also equally arguable that the Applicant has unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position, which involves the provision of care to young children and infants.”
Aaron McDonald suggests that the courts may be willing to consider mandatory vaccinations in workplaces where the workplace provides services to at-risk people, provided that reasonable adjustment is permitted for valid medical reasons.
Other Factors To Be Considered
That case aside, several complicating factors also have a bearing on the issue.
Discrimination Considerations
Anti-Discrimination legislation forbids discrimination based on political viewpoint or religion.
Members of some religions and people who hold an anti-vaccination belief may argue that requiring mandatory vaccinations is discriminatory and therefore illegal.
Medical Considerations
Employees may have medical concerns about the COVID-19 vaccination given the speed of bringing the vaccine to market.
Potential adverse side effects of the vaccine do exist. Who holds liability if an employee suffers an adverse side effect because of the vaccination?
Given the speed of vaccine development, there is limited data on long-term safety and efficiency, combined with little information about how long immunity lasts. These are valid concerns that may stop people from getting the vaccination.
There is also little available information on the vaccine’s potential safety on children under 18, pregnant or breastfeeding women. This could increase the employer’s potential liability if they mandate vaccination in those groups of employees, and any of these employees suffer adverse consequences.
General Legislative Overlap
To add to the complexity, Federal and State parliaments are also grappling how and if they can mandate COVID-19 vaccinations for the entire population through emergency powers or other legislation.
For example, they mandated that being immunised for the flu was a condition of entry to aged care facilities in states and territories during 2020.
It is likely as the vaccine rollout starts to occur, we could see similar overlaps offering.
Things for Employers to Consider
What this means is that employers considering mandatory COVID-19 vaccinations will need to:
- Consider if your industry falls into a high-risk industry.
- Make allowances for genuine medical, religious or health reasons to exempt an employee from receiving the vaccination.
- Consider reasonable adjustment for these employees such as remote work or adjusting the role, so they do not come into direct contact with vulnerable clients or other employees.
- Consider the financial, Workcover and other implications if an employee is injured due to the COVID-19 vaccination.
- Consider the financial, Workcover and other implications if an employee is injured due to your business NOT mandating a COVID-19 vaccination and another employee or client infecting them.
- Consider any Federal or State legislative requirements for vaccinations.
- Consider what support you will provide to household members of employees given much of the transmission occurs within close household contacts.
- Consider your team vaccination priority. Are there some employees either by their personal risk factors or role more at risk and therefore should be vaccinated first?
- Legal waivers may be required to minimise organisational risk, although be aware that these waivers are likely to be challenged and may not hold up in court.
Considering Mandatory Vaccinations?
The best advice for now if you want to pursue mandatory COVID-19 vaccinations for your business is to:
- Talk with a specialist employment lawyer before you do anything to help you identify if your industry could fall into a category where the requirement for a mandatory vaccination outweighs the potential negatives.
- Draft an HR policy with your employment lawyer that covers off exemptions, reasonable adjustment, and potential consequences.
- Ensure all other COVID-19 controls are in place and working effectively (e.g., PPE, cleaning protocols and social distancing).
- Start communication with your employees to gauge their thoughts around COVID-19 vaccinations, the benefits and risks of these vaccinations and any concerns they may have.
Your communication strategy’s goal is to have open communication to genuinely explore the issue and understand your team’s concerns.
Drawing on the experience of other successful public health campaigns such as the eradication of polio, people need to be informed, educated, involved, and heard as part of the process.
This means, as the COVID-19 vaccination rollout commences, communication and employee engagement with your strategy is the only way mandatory vaccinations will be effective in your workplace.
All Employers
All employers, whether pursuing mandatory vaccination or not, should consider:
- Whether they will require mandatory vaccinations or not.
- If and how they will monitor which of their employees have been vaccinated (and how to protect privacy during that monitoring).
- Federal or state requirements for COVID-19 vaccinations.
- Your communication strategy to encourage COVID-19 vaccinations (whether or not you are pursuing mandatory vaccinations).
- Whether you will subsidise or cover the full costs of vaccination.
- Your business working model going forward: Do you need all people to return to the workplace or is a hybrid working from home model acceptable to reduce risk?
