Australia: Can employers mandate COVID-19 vaccinations for staff?
04/11/2021
Australia: Can employers mandate COVID-19 vaccinations for staff?
23 September 2021
Surry Partners
Your LinkedIn Connections
with the authors
With lockdowns in New South Wales and Victoria likely to continue until October 2021 and State Premiers saying that easing of lockdown restrictions is tied to achieving various community vaccination rates, what does this mean for employers?
There are two issues front of mind for employers and HR managers:
- Can I direct staff to return to the office when the restrictions are lifted; and
- Can I mandate vaccination for staff returning to the office?
In this article, I'll focus on the second issue.
Medical experts say that a fully vaccinated workforce increases the safety of all attending the workplace. Employers have a duty to provide a safe workplace for their staff and under workplace safety laws and in connection with workers compensation insurance obligations, there are penalties for failing to do so.
It should follow, that it's lawful for an employer to mandate vaccinations, but it's not that simple.
Workers Compensation
A recent case decided by the New South Wales Personal Injury Commission, illustrates the risk employers take when staff contract COVID in circumstances that give rise to a workers compensation claim.
On 10 August 2021, the Commission found in Sara v G & S Sara Pty Ltd [2021] NSWPIC 286 that the estate of a deceased employee/director who contracted COVID-19 during a work-related trip to the USA and died, was entitled to compensation for his death. It was determined that he contracted COVID-19 in the course of his employment.
Having regard to the dispute over the facts, it being a first instance decision of a single commissioner and the sums involved (the applicant was awarded a death benefit of $834,200, weekly payments for the months that he was ill and unable to work and medical expenses valued at $11 million), the case will almost certainly be appealed.
The result will cause concern for employers (and their insurers) and provide confidence to the almost 1,000+ COVID-19 related workers' compensation claims lodged across Australia at May 2021.
Since the Federal Government COVID vaccine indemnity scheme was introduced on 6 September 2021, employer groups have been pressing legislators to ensure the Scheme is made available for the benefit of employers who mandate COVID vaccinations for staff, for fear of the prospect of escalating WC insurance premiums. This particularly the case in the tourism and hospitality sectors.
The scheme was introduced to provide protection for healthcare workers administering vaccines and is also intended to encourage the unvaccinated public to get "jabbed" by providing access to compensation if they have a serious adverse reaction.
Employers might rightly argue that mandating COVID vaccinations for staff will reduce the risk of employees contracting the virus at work and, accordingly, reduce the risk of a compensation claim. Maybe, but reducing the prospect of a workers compensation claim does not necessarily equate to providing workers with a safe workplace.
Options for Employers
Employers can direct their employees to return to the office to work and to be vaccinated if the direction is lawful and reasonable. Unless governments mandate vaccinations for all, whether a direction is lawful and reasonable will depend on the facts and needs to be assessed on a case-by-case basis.
For a direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies (for example, an anti-discrimination law).
In NSW, the State Government has issued public health orders requiring COVID-19 vaccination for workers specified in the NSW Airport and Quarantine Vaccination Program. The requirements apply to:
- quarantine workers
- transportation workers
- airport workers.
The NSW Government has also introduced COVID-19 vaccination requirements for:
- authorised workers leaving an area of concern for work (from 6 September 2021)
- construction workers who live in an area of concern
- certain early education and care facility workers and disability support workers who live or work in an area of concern (from 6 September 2021).
For a vaccination direction to be reasonable, it cannot be discriminatory or arbitrary. For example, mandating that a worker with a pre-existing medical condition who works in a clerical job, with limited interaction with customers and other staff, may be unreasonable.
On the other hand, an employer of bar staff or waiters in a hotel might reasonable direct staff returning to work to be vaccinated, to reduce the chance that worker, were they unknowingly infected, from passing on the virus to a customer or a co-worker.
What about the staff member who has been working from home effectively under the "stay-at-home" orders and is unvaccinated, but resists the direction to be vaccinated and resists the direction to return to work?
Leaving aside the question of the direction to be vaccinated, is it reasonable for the employer to mandate that the employee return to work in the office, in circumstances where they have demonstrated that they can effectively work from home and they may face an infection risk travelling to work, or at work?
Fair Work Australia
Fair Work Australia has published some helpful guidelines on the topic, which includes the concept of 4 "tiers" of work, as a guide to assessing whether a direction to an employee to get vaccinated is reasonable.
Summary
For the overwhelming majority of businesses, the mandating of workforce vaccinations is at the discretion of the employer.
Where vaccination is not considered an inherent requirement for the worker to perform their work, or the direction to vaccinate is not considered reasonable and lawful, businesses face the risk of court action for actual or constructive dismissal, or for breaching discrimination and/or human rights laws.
Employers must also satisfy their consultation obligations under occupational health and safety legislation and any applicable industrial instruments. It follows that vaccine policies of employers should not mandate the vaccine for all employees without exception.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Australia: Can an employer mandate COVID-19 vaccinations for its employees?
14 September 2021
by
PCC Employment Lawyers
Your LinkedIn Connections
with the authors
Introduction
It has been almost two years since the initial COVID-19 outbreak occurred, and after months of intermittent lockdowns and restrictions in an attempt to slow or reduce its spread, both the Australian State and Federal Government have stated that the administration of COVID-19 vaccinations are the key to lifting these lockdowns and 'living with' COVID-19.
While COVID-19 vaccinations have been mandated under Public Health Orders for some industries and local government areas, both State and Federal Governments have expressed an overall reluctance to mandate COVID-19 vaccinations in the workplace. However, the vast majority of employers that fall outside the scope of these public health orders are now seeking guidance on what to do to further reduce the impacts of COVID-19 on their business, and in particular, whether it is open for them to mandate that their employees receive COVID-19 vaccinations without legal consequences.
This situation is unprecedented in modern times, and the authorities with legislative or executive power are not providing private sector employers with strong guidance on how to navigate this issue. The answer, therefore, involves consideration of 'first principles' in relation to the employment relationship, including both the contractual obligations of the parties, and the statutory protections that underpin employment in Australia.
Lawful & Reasonable Directions
Employment contracts contain an implied term that employees are obligated to follow any lawful and reasonable direction that they are given by their employer.1 Therefore, if an employer's direction that an employee should receive a COVID-19 vaccination, is considered a 'lawful and reasonable' direction, an employee may be obliged to receive one as a condition of their employment.
Is the direction 'lawful'?
For a direction to be 'lawful', it does not have to be consistent with existing laws, it just must not be contrary to any laws. As there are currently no laws that make mandatory vaccination a condition of employment unlawful, the direction would be considered a lawful direction (subject to the further considerations below relating to discrimination).
Is the direction 'reasonable'?
Whether the direction to receive a COVID-19 vaccine will be considered 'reasonable' is a more complicated question that involves consideration of the nature of, and circumstances surrounding, the employment.
The Fair Work Ombudsman (FWO) has updated its website2 to provide guidance on factors to be considered when determining whether a direction to receive a COVID-19 vaccination is 'reasonable', including:
- The nature of the workplace, such as whether there is a need to interact with the public and what other controls are in place.
- The extent of community transmissions near the workplace, and the risk of transmission amongst employees and others.
- The effectiveness of COVID-19 vaccinations at reducing the risk of transmission or serious illness.
- Any existing work, health, and safety obligations (which we will discuss in more detail below).
- The individual circumstances of each employee.
- Whether an employee has a legitimate reason for not being vaccinated, this may include a medical reason.
- Vaccine availability.
As further guidance, FWO has divided work into 4 tiers, noting that a workplace may include a variety of tiers:
- Tier 1: consisting of employees who are required to interact with people who have an increased risk of being infected with COVID-19 as a part of their role, such as quarantine or border control workers.
- Tier 2: consisting of employees required to have close contact with people who are vulnerable to the impacts of COVID-19, such as employees who work in health care or aged care.
- Tier 3: consisting of employees who interact with others in the normal course of their employment.
- Tier 4: consisting of employees who have minimal face-to-face interaction with others, such as those who work from home.
The FWO has suggested that it is more likely that a direction to receive the COVID-19 vaccine will be considered reasonable for tier 1 and tier 2 employees due to the increased risk of these employees being infected with COVID-19 or giving it to a vulnerable person. Whether it will be reasonable for tier 3 is not as clear. Where there is no or limited community transmission of COVID-19, the direction to receive the COVID-19 vaccination is less likely to be considered reasonable, than if there were high levels of community transmission. The FWO has also suggested that directing a tier 4 employee to receive the COVID-19 vaccination will not be reasonable.
There is not yet any case law available to assist employers in determining what the Fair Work Commission (FWC), or a court, will consider reasonable, in relation to the COVID-19 vaccine. However, the recent case Glover v Ozcare [2021] FWC 2989 (Glover v Ozcare), while not binding, may provide useful guidance.
Glover v Ozcare
Glover v Ozcare involved a health care assistant who made an unfair dismissal claim against her former employer, Ozcare, who dismissed her after she refused to have the influenza vaccination. The Fair Work Commission dismissed her claim and held that Ozcare's direction, that she must receive the flu vaccination, was a lawful and reasonable direction. When considering whether the direction was reasonable, the FWC noted that vulnerable clients should be able to expect that the carers entering their homes were taking every precaution against influenza and that wearing personal protective equipment is insufficient to do this.
Therefore, the greater the rate of community transmission, the more likely it is that the direction to receive the COVID-19 vaccination will be considered a reasonable direction. The Federal and NSW Government are emphasising the need to move forward and 'live with' COVID-19 and are no longer committed to the strategy of reducing community transmissions to zero. Therefore, it is likely that the rate of community transmission will continue to increase, and as it does, it will be more reasonable for an employer to mandate COVID-19 vaccinations.
Work Health and Safety Legislative Obligations
Section 19 of the Work Health and Safety Act 2011
Employers have an obligation under section 19 of the Work Health and Safety Act 2011 (Cth) (the WHS Act) to ensure the health and safety of its workers 'so far as is reasonably practicable'. Therefore, it is arguable that ensuring that their workforce is vaccinated against COVID-19 is a necessary step towards ensuring the health and safety of their employees and compliance with their legal obligations under the WHS Act. However, employers do not need to mitigate all risks to the health and safety of their employees, they are only required to take those measures that are 'reasonably practicable'.
SafeWork Australia3 has recommended that employers undertake a risk assessment to determine what measures, including mandatory COVID-19 vaccinations, will be considered 'reasonably practicable'. SafeWork Australia has gone further and stated that it believes that most employers will not need to mandate COVID-19 vaccinations in order to comply with their WHS obligations, as this is unlikely to be 'reasonably practicable'. This conclusion was made due to the fact that the government is already mandating COVID-19 vaccinations for industries where it is considered necessary, and also because not all employees currently have access to a COVID-19 vaccine, while some employees will not be able to receive a vaccination due to medical reasons.
However, employers should conduct their own assessment, with consideration of the following:
- What is being recommended by the Australian Health Protection Principal Committee for your industry?
- Are employees exposed to the risk of infection as a part of their work?
- Do employees work with others who are vulnerable to severe disease if they contract COVID-19?
- What is the likelihood that COVID-19 would spread in the workplace? For example, are employees working within close proximity to each other?
- Do employees interact with a large number of people as a part of their work?
- What other control measures are available and in place at the workplace and do these already minimize the risk to a reasonably practicable level?
- Would the requirement be unlawful? Does it discriminate against a class of employees?
Section 84 of the Work Health and Safety Act 2011
Under section 84 of the WHS Act, a worker can cease or refuse to carry out work if there is a serious risk to health and safety due to an immediate hazard. Therefore, it is necessary to consider whether an unvaccinated employee is considered an immediate hazard causing a serious risk to health and safety, therefore allowing other employees to refuse or cease work.
SafeWork Australia said that in most cases an employee will not be able to rely on section 84 to cease work because another employee is unvaccinated, however this will vary depending on the circumstances.
Consultation
Employers should also be aware of any consultation obligations placed on them under the WHS Act 2011, or any other applicable modern award, agreement, employment contract or existing workplace policy and ensure that they comply with those obligations before implementing a vaccination policy.
Can vaccines be incentivised?
In the event that an employer is unable to mandate that their employees receive the COVID-19 vaccination, many are asking "can I offer employees an incentive to encourage them instead?".
It appears that, as long as an employer is not taking away rights or benefits from employees who do not receive the vaccination, they may be able to provide incentives to employees who do. SafeWork Australia4 has said that employers can encourage their workers to get a COVID-19 vaccination, if they are able to.
Can an employer seek information from employees about their vaccine status?
If an employer is able to mandate vaccinations, then this poses the question of how an employer is able to guarantee that its employees have received the COVID-19 vaccination.
Again, this will come down to whether the direction to receive medical evidence of a COVID-19 vaccination is considered lawful and reasonable. In circumstances where it is lawful and reasonable to mandate a vaccination, it appears likely that an employer's request for evidence that this direction has actually been complied with would also be considered lawful and reasonable.
The Fair Work Ombudsman has advised on its website that an employer may ask for evidence of an employee without raising privacy issues as long as they do not 'collect' the information. The FWO then adds that an employer should not collect information relating to the vaccination status of an employee unless the employee consents and the collecting of this information is necessary for the employer's function and activities.5 The FWO goes further and then states that consent to the collection of this information is not required if the collection is required or authorised by law, such as, when it is required for an employer to meet their work health and safety obligations.
Legal liability of an employer if vaccines are mandated
Conversely, it is important for employers to consider the risks of mandating the COVID-19 vaccine. Employers have raised concerns about whether they will be liable if an employee receives the COVID-19 vaccination due to mandatory policy and then they suffer injury.
COVID-19 vaccine claims scheme
The Federal Government has implemented the 'COVID-19 vaccine claims scheme' which aims to reimburse people who suffer a moderate to significant impact following an adverse reaction to an approved COVID-19 vaccine.6This scheme will cover claims from $5,000 to $20,000, regardless of where the claimant received the vaccination. However, to be eligible, the claimant must provide evidence that they were hospitalised for at least one night due to a vaccine related injury, as well as demonstrate the nature of injury, the associated medical costs, and lost wages. The vaccination scheme will provide an avenue for employees to gain compensation for adverse reactions to the COVID-19 vaccination, and reduce the liability of employers.
Workers Compensation claim
iCare states that where an employer has encouraged or required a worker to get the COVID-19 vaccination, and the worker has an adverse reaction to the vaccination, this may be covered by workers compensation.7The worker would need to prove that the injury arose out of, or in the course of their employment and that each claim is assessed on a case-by-case basis. iCare also provided that the following factors may increase the likelihood that a claim is covered by workers compensation:
- whether the employer took steps to arrange for its employees to receive a COVID-19 vaccination;
- whether the employer encouraged or induced employees to get vaccinated in order to obtain benefits for its business;
- whether the employer permitted or directed employees to have a COVID-19 vaccination during ordinary working hours; or
- whether the employer provided instructions to employees relating to the administration of the vaccination.
Therefore, it is possible that by mandating the COVID-19 vaccination, employers will be liable for any adverse reactions incurred. Since iCare is only applicable to New South Wales, employers should review the advice applicable to their state.
Unlawful Discrimination
Employers should also consider whether a mandatory COVID-19 vaccination policy would create a risk for unlawful discrimination.
Discrimination Legislation
Federal discrimination laws provide that it is unlawful to discriminate on the grounds of pregnancy and disability in employment. As the definition of 'disability' is very broad, this could include a medical condition that prevents a person from receiving the COVID-19 vaccination. Under section 15 of the Disability Discrimination Act 1992 (Cth) (the DD Act) it is unlawful for an employer to discriminate against a person on the ground of their disability and this may extend to employers who take action against an employee who does not receive the COVID-19 vaccination or receive blanket rules mandating vaccination. This law is largely replicated specifically for employees by section 351 of the Fair Work Act 2009 (Cth).
However, it is not unlawful for an employer to discriminate against another person if that person would be unable to perform the inherent requirements of their work, even with reasonable adjustments being made by the employer. Further, it is not unlawful for an employer to discriminate against another due to their disability, if the adjustments required to enable the person to perform the inherent requirements of the role would impose unjustifiable hardship on the employer.
Employers will need to determine each matter on a case-by-case basis and understand the reasons that an employee cannot receive the vaccination, in order to identify whether there are any reasonable adjustments that can be made to an employee's role, that do not involve mandating the COVID-19 vaccination. In some cases, it may be open for an employer to contend that it was an inherent requirement of an employee's role that they work with vulnerable clients, or members of the community, and they must therefore be protected from COVID-19 by vaccination, as there were no other reasonable adjustments that could have been made.
It is only unlawful to discriminate against an unvaccinated employee if their reason for not receiving the vaccination is due to a protected reason, such as a medical condition, pregnancy or religious belief. The Fair Work Act also protects employees against discrimination on the grounds of political beliefs. However, a mere 'conscientious objection' on philosophical grounds to vaccination is currently not a protected attribute under Australian Law.
As discussed above, however, employers should consider the individual circumstances of each employee when determining whether a direction is reasonable.
A businesses obligation to their clients / customers
Businesses also owe a common law duty of care to their customers and clients under the tort of negligence. This duty requires that businesses take reasonable care to avoid acts or omissions which they can reasonably foresee would be likely to injure customers or clients.8If a business has breached this duty of care, and this breach caused a customer or client to suffer material damage, then the business may be liable to pay the client or customer damages for the harm suffered.
As COVID-19 and its legal implications are relatively recent, and to date COVID-19 has been regarded as unprecedented and 'unforeseeable', there has been little discussion in relation to potential suits relating to businesses that negligently allow customers or clients to contract COVID-19 at their place of business. However, as we begin to accept the risks of COVID-19 into our everyday lives, it is conceivable that the failure to implement proper safety protocols in a public business (potentially including a policy around vaccination) could over time become considered an omission which could reasonably be foreseen to injure customers or clients.
Risk of not mandating COVID-19 vaccinations
There are a number of risks that businesses may face if they do not mandate COVID-19 vaccinations, this will vary from business to business, depending on the work that they do and the industry. Some potential risks, relating to the increased rate of transmission among the unvaccinated, may include:
- Increased rates of COVID-19 transmission in the workplace resulting in increased personal leave.
- Workplaces being required to shut down if a COVID-19 outbreak occurs on site.
- Additional costs incurred by implementing additional controls to mitigate the risk of COVID-19, in the absence of a vaccinated workforce.
What if an employee refuses to receive the COVID-19 vaccination?
As we discussed above, an employee can be subject to disciplinary action if they refuse to follow a lawful and reasonable direction, which in some circumstances, may include a direction that they receive the COVID-19 vaccination.
First, an employer should obtain the employee's reasons for not receiving the vaccination and identify if any of these reasons are protected, as this may mean that the employee should not be subject to disciplinary action at all. If an employee's reason for not receiving the COVID-19 vaccination is not for protected reasons, it is important that employers ensure that they follow a fair process and comply with their obligations under the FW Act in regard to adverse action and dismissal.
Conclusion
Whether an employer can mandate COVID-19 vaccinations is not a straightforward question. There is no blanket rule, as each case will be determined by reference to the individual circumstances of each business and its workforce.
Footnotes
1R v Darling Island Stevedoring & Lighterage Co ltd; Ex Parte Halliday (1938) 60 CLR 601
6 https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/covid-19-vaccine-claims-scheme
8 Donoghue v Stevenson [1932] AC 562.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.