Mandating vaccines for employees – Part 2

On 22 January 2021, Kingston Reid published an update which examined whether employers could require staff to receive COVID-19 vaccinations. In that update, we explored the important link between work, health and safety obligations and limiting the risk of a COVID-19 infection in the workplace.

Late last week, the Federal Government, through the Fair Work Ombudsman (FWO) and Safe Work Australia (SWA), released its much anticipated updated guidance addressing this issue.

In summary, the guidance released by the FWO states that:

  • In the current circumstances, the overwhelming majority of employers should assume that they won’t be able to require their employees to be vaccinated against COVID-19;
  • Employers can direct their employees to be vaccinated if the direction is lawful and reasonable;
  • Whether a direction is lawful and reasonable has to be assessed on a case by case basis (refer to our discussion of this in our 22 January Insight);
  • On its own, the pandemic doesn’t automatically make it reasonable for an employer to direct its employees to be vaccinated against COVID-19. Some circumstances in which a direction may be more likely to be reasonable include where employees:
    • interact with people with an elevated risk of being infected with COVID-19 (for example, employees working in hotel quarantine or border control); or
    • have close contact with people who are most vulnerable to the health impacts of coronavirus infection (for example, employees working in health care or aged care);
  • Assuming there is no public health order preventing an employee’s attendance at the workplace, it is unlikely that an employee could refuse to attend the workplace where a co-worker is not vaccinated against coronavirus, because (a) vaccination is not mandatory and most workplaces won’t be able to require their employees to be vaccinated, and (b) the co-worker may have a legitimate reason not to be vaccinated.

The key points contained in the SWA guidance are that:

  • Most employers will not need to make vaccination mandatory to comply with the model work health and safety laws;
  • It is unlikely that a requirement for workers to be vaccinated will be reasonably practicable. This is because, for example:
    • at present, public health experts, such as the Australian Health Protection Principal Committee has not recommended a vaccine be made mandatory in any industries;
    • there may not yet be a vaccine available for your workers;
    • your workplace is ‘low risk’, for example, your business is in a town with no community transmission or no customer facing roles; or
    • some of your workers have medical reasons why they cannot be vaccinated.
  • Some factors that employers should consider on an ongoing basis include:
    • Is the Australian Health Protection Principal Committee recommending COVID-19 vaccinations for all workers in your industry?
    • Will your workers be exposed to the risk of infection as part of their work? For example, hotel quarantine workers will be at higher risk of exposure when their work duties place them in contact with people who may be infected with COVID-19;
    • Do your workers work with people who would be vulnerable to severe disease if they contract COVID-19?
    • What is the likelihood that COVID-19 could spread in the workplace? For example, some work tasks may require your workers to work in close proximity to each other;
    • Do your workers interact with large numbers of other people in the course of their work that could contribute to a ‘super-spreading’ event if your workers contract COVID-19?
    • What other control measures are available and in place in your workplace? Do those control measures already minimise the risk of infection, so far as is reasonably practicable?
    • Would a requirement to be vaccinated be unlawful in the circumstances?
  • At this stage it is too early to tell if the COVID-19 vaccines will stop a vaccinated person from being infected with COVID-19. This means that a vaccinated person may unknowingly carry and spread the virus to others around them, including workers and others in their workplace. For this reason, employers must continue to apply all reasonably practicable control measures.

However, somewhat curiously, the guidance also states that in most circumstances, an employer may be able to require a prospective employee to be vaccinated against COVID-19. Whilst contractually, a requirement that a prospective employee be vaccinated can be a legitimate term of employment, such a requirement can still enliven discrimination claims if the prospective employee refuses and is subsequently not offered employment.

What does this mean?

The guidance indicates that, from a policy perspective, the circumstances in which an employer can mandate COVID-19 vaccinations are narrower than many had thought would be the case and narrower than the circumstances identified by the Fair Work Commission in the recent decisions of Arnold v Goodstart Early Learning and Glover v Ozcare (both of which are discussed in our 22 January Insight).

The overarching implication from the guidance is that there will be sufficient incentive – outside of work – for citizens to get vaccinated which, as a matter of practicality, renders it unnecessary for employers to mandate vaccination. In keeping with the NSW Premier, Gladys Berejiklian’s statement last week, employers operating in industries considered low risk, could still consider offering incentives to employees to get vaccinated – how and what those incentives may be, will be a matter for discussion amongst management, noting again, the need to avoid an inadvertent indirect discrimination risk. Further more, the basis for which an employer can require an employee to confirm whether they have been vaccinated will need to be carefully linked to the relevancy of the employment and managed sensitively, in accordance with your organisation’s Privacy and WHS Policies.

Importantly, for now at least,  the guidance:

  • does not alter the process that an employer must go through in working out whether to mandate COVID-19 vaccinations for part or all of its workforce. As discussed in our 22 January update, the employer must determine whether directing its workers to be vaccinated constitutes a lawful and reasonable in the particular circumstances. The factors outlined in the Government’s updated guidance will be relevant to that assessment, but not determinative of it; and
  • will provide support to an employer dealing with an employee who resists returning to the workplace because one or more of their colleagues have not been vaccinated.

These developments further underscore the importance of obtaining legal advice to help you assess whether directing any of your employees to receive a COVID-19 vaccination is lawful and reasonable in the circumstances, and whether you should make offers of new employment conditional upon the person being vaccinated.

For businesses who may not be able to make vaccinations mandatory, it will be necessary to identify other reasonable practicable measures that you could adopt in order to increase the prospect of employees getting vaccinated, such as (for example) promoting vaccination to workers or allowing employees to get vaccinated during their normal working hours. Taking such steps, alongside retaining existing COVID-19 safe measures, will certainly help employers demonstrate compliance with their statutory safety duties.

Christa Lenard
Partner
+61 2 9169 8404
christa.lenard@kingstonreid.com

Dominic Fleeton
Partner
+61 3 9958 9616
dominic.fleeton@kingstonreid.com