The Great ‘Jab’ Debate – can employers require employees to be vaccinated?

The ‘new normal’ of COVID-19 appears to include acceptance that it is going to be with us for a while if not permanently. Recently, the subject of mandatory vaccinations has become a contentious issue for employers trying to manage their WHS risks. In this article, we look at the issues you should consider when determining if you can and should require employees to be vaccinated for COVID-19.

Contents

1. Practical considerations
2. Managing risks
3. Requiring vaccination
4. Test Case to watch

Practical considerations

When trying to determine how you can manage workplace health and safety, if you are not in an industry dealing with vulnerable people or high-risk situations, mandating vaccinations may not be considered reasonable, and you may need to consider alternatives like:

• consult with employees to understand their concerns and how you might overcome them to gain their cooperation;
• incentivise employees being vaccinated;
• offer practical support such as paid days after vaccination if an employee experiences after effects;
• use positive recognition of people who have been vaccinated to encourage the rest of your team;
• facilitate access to counselling for employees who have real concerns about being vaccinated.

Managing risks

For those employers who rely on face-to-face contact or ‘hands on’ work, controlling COVID-19 over the long term may be challenging. To manage your WHS obligations, “you must do all that is reasonably practicable to minimise this risk and vaccination should be considered as one way to do so in the context of a range of COVID-19 control measures’’[1]. Also, the current vaccines are not designed to stop transmission. They are intended to prevent people from getting seriously ill with the virus if they are infected.

Generally, the position is that employers can only require their employees to be vaccinated when:

• a specific law (i.e. a state or territory public health order) requires an employee to be vaccinated;
• the requirement is permitted by an enterprise agreement, registered agreement or employment contract applying policies; 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.[2]

Employers should also be mindful of how anti-discrimination laws or objections on medical grounds may affect their direction. If an employee has a documented medical condition that prevents them from being vaccinated, the employer cannot require the employee to comply with their direction. If an employee cannot be vaccinated because of medical reasons, it may be that their presence in the workplace also cannot be safely managed to avoid or minimise risk to them and others and their employment may not be sustainable, through no fault of theirs or the employer.

Requiring vaccination

It has long been the case that employers can mandate vaccinations where they can demonstrate that it is necessary to manage their workplace health and safety obligations to eliminate, or if that is not reasonably practicable, minimise the risk of injury or illness in the workplace. This includes the risk of exposure to COVID-19 in the workplace.

Whether a direction will be enforceable will depend on:

• the reasonableness of the direction;
• risks to the employees in complying;
• what other control measures can be implemented by the employer; and
• any costs to employees.

Safe Work Australia’s current position is that “it is unlikely that a requirement for workers to be vaccinated will be reasonably practicable.”[3] This is because, for example:

Ultimately whether you should require your workers to be vaccinated will depend on the circumstances specific to your organisation at the time you are undertaking your risk assessment. Some factors you should consider on an ongoing basis include:

Test Case to watch

SPC is the first Australian company to mandate the COVID-19 vaccine for all its onsite staff. SPC has implemented a six-week period for employees to book their first vaccination to avoid the risk of being barred from on-site work. SPC has also provided their employees with two additional days of personal leave should an employee becomes unwell after receiving the vaccine.

There have been objections raised to the direction and it is expected that the SPC direction to their staff will be the test case of what is reasonable. We may see some responses from employees and employee representatives soon.

Since SPC’s announcement, Qantas has also announced that they require all staff to be vaccinated, with frontline workers required to comply by mid-November and other workers by the end of March next year. The Qantas decision was released on the back of a staff survey in which more than three quarters of Qantas’ employees supported mandatory vaccination.

If you are considering implementing a vaccination policy in your workplace, we can assist you in forming an effective policy and advise on implementation and application. You can contact us at 07 3160 0010 or reception@nfplawyers.com.au.

If you are interested in reading more about this topic, here is a link to an extended version of this article.

[1] WorkSafe Australia website, COVID-19 Information for workplaces – Vaccination < https://www.safeworkaustralia.gov.au/covid-19-information-workplaces/industry-information/office/vaccination>

[2] COVID-19 vaccinations: workplace rights and obligations, Fair Work Ombudsman website.  https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations#vaccination-requirement-anti-discrimination-laws

[3] WorkSafe Australia website, COVID-19 Information for workplaces – Vaccination.  <https://www.safeworkaustralia.gov.au/covid-19-information-workplaces/industry-information/office/vaccination>

Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.