It’s the $64,000 question, isn’t it? And while a large part of the Australian population is (again) in lockdown, and a coronavirus vaccination (the vaccine) is being presented as our only hope of returning to some semblance of “normal” life, employers and employees alike are curious to know the answer. Employers are asking for clarity and guidance and employees are hearing ‘no jab no job’ and asking, can I seriously lose my job for refusing to get the vaccine?

In this blog, we share our current view and recommendations for employers who are considering what their approach to vaccinations might be.

Unfortunately, there is no ‘one size fits all’ in this evolving situation. Each employer will need to undertake a case by case assessment as there is significant variation in circumstances across geographic locations, workplaces, work types, individuals and even vaccine availability. For many employers in Australia this will mean that they cannot implement a mandatory vaccination policy right now. However, in the future we believe there will be many more workplaces where a policy of mandatory vaccination (with some exceptions) will be viewed as reasonable.

Employer considerations

Employers have a fundamental legal obligation under work health and safety laws to provide a workplace that is, so far as reasonably practicable, healthy and safe for their employees, including contractors. They must also keep visitors safe. This explains why building companies mandate that workers, and any site visitors, wear hard hats for example, rather than letting everyone make their own choice about whether they would like to wear a hard hat or not. Furthermore, if an employee becomes infected with the virus through their work, they may become entitled to workers’ compensation payments, simply because the injury is work-related in our no-fault system. Their employer can also be prosecuted for any safety breach.

On the other hand, requiring employees to undergo a medical procedure that they do not want, seems fundamentally wrong and you may lose valuable staff who cannot, or will not, comply. In the case of people who cannot get the vaccine, for example for medical or religious reasons, there is also a risk that such a requirement could breach anti-discrimination legislation.

In some states, there are very limited categories of workers in higher risk workplaces, such as quarantine workers, employees in residential aged care facilities and specified others, who are required by health orders to be vaccinated; the Fair Work Ombudsman (FWO) lists them on its website.[1] Employers of these employees can, and indeed must, require them to get the vaccine in accordance with the order. But this will not apply to most employers.

Lawful and reasonable directions

So, what if there is no health order in relation to your employees? The question then arises whether requiring your employees to get the vaccine is a lawful and reasonable direction under employment law. Employees must comply with lawful and reasonable directions of their employer or risk dismissal if they refuse to do so.

An employer direction to get the vaccine would, in most cases, be lawful as it does not require the employee to do anything unlawful. It is consistent with their own work health and safety obligations as an employee to take care of their own, and other persons’, health and safety. However, if the direction applies to all employees without any exceptions, including for example those with a medical reason for why they cannot be vaccinated, then it might be unlawful if it breaches anti-discrimination legislation.

Is such a direction reasonable? This requires a consideration of the specific set of circumstances that apply at the relevant time to your workplace. For example, employers need to look at the nature of the workplace and the employee’s role:

  • Does the employee work at home alone and have no contact with anyone else? If so, requiring them to get vaccinated might not be reasonable.
  • Do they have to work in a shared space, with colleagues and/or the public, where they could infect, or become infected by, others?
  • Do they work with vulnerable people such as the aged, or persons who cannot be vaccinated themselves (at the present time), such as children?

We also need to look at the broader circumstances that apply with COVID in the community. Is the workplace in a state or territory where there is no community transmission? There was a time in Victoria where there was zero community transmission; that time is now over. The Delta variant is also highly infectious, more infectious than other variants that were dominant at earlier stages of the pandemic.

The terms of an employer’s direction, and how it will be implemented, also go to its reasonableness. For example, a direction communicated today, requiring all staff to be vaccinated by tomorrow, would not be reasonable. A further problem is that vaccines are in short supply in some areas and there are potentially long waiting periods even when a person wishes to be vaccinated. A direction which applies to a 17-year old, if no vaccine is available to them in their state, is also not reasonable.

On 12 August 2021, the FWO updated its guidance to employers about giving lawful and reasonable directions to employees to be vaccinated. The FWO recommends employers undertake a case by case assessment and differentiate between four tiers of work, determined by the interaction employees have with others, and who those others are.[2] The FWO advises that a direction to get vaccinated given to employees who:

  • work with people more likely to be infected (e.g. hotel quarantine workers) or who are more vulnerable to COVID (e.g. aged care workers) “is more likely to be reasonable”;
  • have limited in-person interaction with others (e.g. employees working from home) “is unlikely to be reasonable”;
  • interact with colleagues and/or the public, in circumstances where there has been no community transmission in the area for some time, is “in most cases less likely to be reasonable”; and
  • interact with colleagues and/or the public, in circumstances where there is community transmission in the area, is “more likely to be reasonable.”[3].The guidance is helpful but not definitive, and also does not create any defence for employers who might face legal action after seeking to enforce a mandatory vaccination policy.The employer’s specific work health and safety obligations, and the outcome of any risk assessment, discussed further below, are key to any assessment as to whether a mandatory vaccination policy, for some or all of your employees will be considered lawful and reasonable, or whether existing measures such as hygiene, social distancing, isolation and masks are considered sufficient risk controls at the moment.

    WHS obligations

    The employer’s obligation to provide a safe workplace is paramount, but it is not absolute. The obligation to ensure health and safety applies “so far as is reasonably practicable.” Not all health and safety measures, such as a mandatory vaccine for all employees, would at this time, be reasonably practicable. This is a case by case assessment that is applied on the basis of the risks presented to, and by, any category of employee. Work health and safety legislation[4] outlines a number of factors that employers must consider when assessing what is reasonably practicable:

    The likelihood of the hazard or risk eventuating.

    For example, for aged care workers the risk is considered extremely high; for supermarket workers this has the potential to be high; and for employees working from home the likelihood may be very low.
    The degree of harm that would result if the hazard or risk eventuated. We know that COVID can cause serious illness (including long term serious adverse health consequences even for those who recover) and death.
    What the employer knows about the hazard or risk and the ways to eliminate or reduce it.

    It is well known in the community how COVID spreads and what the available measures to reduce spread are, including that vaccines do reduce the risk of transmission, but do not prevent it entirely. In the hierarchy of controls, under health and safety laws, vaccinations are considered a higher order control than masks, hygiene and social distancing, but even with vaccinations, in some circumstances those lower order controls are still recommended.
    The availability and suitability of ways to eliminate or reduce the hazard or risk.

    As outlined above there are some employees, such as under 18s in some states, for whom the vaccine is not available and some employees, such as those with certain medical conditions, for whom it is not suitable. There may be other measures such as masks, social distancing or working from home that may be suitable for them.
    The cost of eliminating or reducing the hazard or risk.

    For many employees the vaccine is free. Some employees, due to age or their specific health needs, may need to see a GP and pay for that consultation. Employers may need to pay the cost of that consultation, which is not a significant cost in the circumstances.

    Guidance in undertaking a risk assessment can be found on the SafeWork Australia website.[5]

    Consultation

    Employers have a legal obligation to consult with their employees, and employee’s representatives such as their union, with respect to health and safety matters, including when implementing a policy about vaccinations and whether they will be mandatory.

    We recommend that all employers consult widely prior to developing their vaccinations policy. If you have not already done so, you should start that process now.

    A consultation process will not only help educate employees, but also allow employers to determine who in their workplace is resisting vaccination and why. If the reasons are due to medical conditions or religion, employers will have an opportunity, prior to implementing their policy, to consider whether there are alternative measures that could be adopted for these employees. The number of staff in this category and the roles they are in will be relevant considerations. If the reasons are vaccine hesitancy or similar, employers might consider whether to implement an incentive program as part of their response, although great care must be taken with this approach as conditions do apply.[6].

    So, can employers make it compulsory or not?

    Given the case by case assessment that is involved in deciding what is reasonable, and what is reasonably practicable, and having regard to the great variation in circumstances across geographic locations, workplaces, work types, individuals and even vaccine availability, we consider that, at this time, many employers in Australia could not implement a policy mandating vaccination for all of their employees.

    However, this view will change over time as more information comes to light about the more infectious variants and as the pressure to re-establish normal working conditions, for commercial or mental health reasons, continues to mount. If variants are more infectious and more dangerous, and if vaccines continue to reduce transmission, we believe there will be many more workplaces where a policy of mandatory vaccination (with some exceptions) will be viewed as reasonable.

    If you are currently considering these issues in your workplace or seeking advice, please do not hesitate to contact us.

    [1] ‘COVID-19 Vaccinations: Workplace Rights and Obligations’, Fair Work Ombudsman (Web Page, 12 August 2021) https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations

    [2] Ibid

    [3] Ibid

    [4] Occupational Health and Safety Act 2004 (Vic) s 20(2); Model Work Health Safety Act 2011 s 18 as enacted in each jurisdiction