There is no doubt that as Australia moves from elimination to suppression of COVID-19, employers are justifiably grappling with the question as to what extent must they insist upon employees being fully vaccinated in order to continue in their employment. There is a degree of inconsistency between an employer appropriately discharging its health and safety obligations and a person’s freedom or right to preserve their bodily integrity by choosing not to be vaccinated.
As we move toward a new ‘COVID-19 normal’, we have observed a shift in acceptance that the highest control measure against serious illness and/or death resulting from a person contracting COVID-19 is vaccination, and that employers have a duty to mitigate the risk of persons contracting COVID-19 during the course of their employment.
This shift has been accelerated by various state governments’ preparedness to issue public health orders and directives mandating vaccinations for employees (and indeed the public) working in and/or accessing various services, such as health, aged care providers, education, cafes etc.
This shift to a suppression strategy inevitably raises the question as to whether or not employers should mandate vaccination against COVID-19 to ensure, so far as reasonably practicable, the health and safety of its employees, contractors, volunteers and their families. Contracting or transmitting the virus during the course of employment gives rise to significant legal risk, including in relation to workers’ compensation and public liability, as discussed by our insurance law Partner, Cameron Seymour, in his follow up article Do your insurance policies cover Covid related claims?
Can an Employer Require an Employee to Be Vaccinated Against Covid-19?
It is generally accepted that employers can only require their employees to be vaccinated where:
- a specific law (such as a state or territory public health order) requires an employee to be vaccinated;
- the requirement is permitted by an enterprise agreement, other registered agreement, or employment contract; or
- it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis.
Is It a Lawful and Reasonable Direction to Mandate COVID-19 Vaccinations?
As a starting point, all employees are under an implied or express contractual obligation to observe the lawful, reasonable directions of their employer. For a direction to be lawful, it must be consistent with any employment contract, award or industrial agreement, and any Commonwealth, state or territory law that applies. This is well established law in Australia.
In most circumstances, the implementation of a mandatory vaccination policy would not be inconsistent with workplace health and safety laws. What constitutes a ‘reasonable’ direction is less clear. The nature of the work and duties are crucial to this assessment. The reasonableness of directions will be considered in the context of implementation of health and safety policies and broader risk profile of an employer’s operations with respect to employee’s duties, frequency of interactions with colleagues, clients, vulnerable persons, and members of the public.
What Factors Will the Court Consider When Assessing Whether the Direction is Lawful and Reasonable?
There are a range of factors that may be relevant when determining whether a direction to an employee is reasonable. Things to take into consideration include:
- the nature of each workplace (for example, the extent to which employees need to work in public facing roles, whether social distancing is possible, whether employees can effectively work from home and whether the business is providing an essential service);
- each employee’s circumstances, including their duties and the risks associated with their work;
- whether employees have a legitimate reason for not being vaccinated (for example, a medical reason);
- the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of COVID-19 among employees, clients or other members of the community;
- the effectiveness of vaccines in reducing the risk of transmission or serious illness, including variants; and
- work health and safety obligations.
The Courts will assess the reasonableness of a direction to be vaccinated against COVID-19 on a case-by-case basis. In other words, merely because the vaccination policy might be a lawful and reasonable direction for one category of employee, it does not necessarily mean that it extends to all categories of employees within an organisation.
A direction to be fully vaccinated against COVID-19 would arguably have greater justification where international and/or state borders are open without restrictions and COVID-19 is circulating widely throughout the community, which increases an employee’s risk profile in terms of contracting COVID-19 during the course of their employment.
Employers Must Consult Employees on Mandatory Vaccination Policy
The Fair Work Commission (FWC) Full Bench recently provided clarity as to the minimum expectations in relation to a workplace vaccination mandate in circumstances where there is no applicable public health direction or express contract term. The FWC found that if BHP had consulted mine workers in a reasonable way before it introduced the mandate, this would have ‘provided a strong case in favour of a conclusion that the Site Access Requirement was a reasonable direction’. This highlights the importance of engaging in meaningful consultation with employees prior to the implementation of a mandatory vaccination policy.
The BHP decision ultimately provides a degree of confidence for businesses seeking to introduce a mandatory COVID-19 vaccination, on the basis that the FWC was prepared to endorse the reasonableness of the requirement to be vaccinated against COVID-19 if employees were properly consulted on the policy.
If an employer implements a mandatory vaccination policy, they need to be conscious of and properly consider reasonable alternatives prior to moving to dismissal as a result of an employee’s failure to comply with a direction to be vaccinated. For example, if an employee refuses to be vaccinated and an employer fails to explore or consider reasonable adjustments to an employee’s role (for example, working from home), then an argument may be raised that any subsequent dismissal is unfair – on the basis that objectively it could be determined that the particular employee can effectively/efficiently work from home for a period of time. Note, however, that it would seem unreasonable for the Courts to adopt the view that an employee must work from home indefinitely, particularly where the inherent requirement of the role requires a physical office presence and/or face-to-face interaction with colleagues and clients.
In short, there is no ‘one size fits all’ approach to this issue, however, employers ought to consider the circumstances as a whole, including the application of any state or territory public health orders that might apply or risks to an employee’s health and safety arising from the particular role.
Ultimately, employers need to be aware of the risks associated with transmission of COVID-19 and undertake a thorough and diligent risk assessment in order to assess what control measures ought to be implemented in order to minimise risks to health and safety. This may include imposing a mandatory vaccination policy or other safety measures. Employers must ensure that they properly consult with employees in relation to the proposed policy to ensure the policy is reasonable and enforceable.
If you would like to conduct a risk assessment or prepare a mandatory vaccination policy, please do not hesitate to contact me.