Mandatory Covid-19 vaccinations: are they lawful?

The April 2021 edition of the LSJ included the legal update by Jack de Flamingh & Kate Curtain, Requiring the jab? What’s reasonable in Australian workplaces? The law in that update is still good, but the public health risk in at least Greater Sydney and Melbourne has changed dramatically.

In the past month we have seen the Prime Minister summarise a briefing from the Solicitor-General on when employers can mandate vaccination, the Fair Work Ombudsman has updated its guidance on managing vaccinations in the workplace, Safe Work Australia has issued its own vaccination guidance, and more industries and workers have been added to the public health orders mandating vaccination in NSW. In addition, some large employers (Qantas, Virgin Australia, SPC, and others) have stated that vaccination will be mandatory for all or a defined portion of their staff.

On 1 September 2021, the NSW Premier said ‘get vaccinated if you’re an individual. If you’re a business, start dusting off your COVID-safety plan. Make sure your employees are vaccinated so we can get back to life at 70 per cent double-dose vaccination.’ It remains to be seen how the NSW Roadmap to Freedom released on 9 September 2021, allowing the fully vaccinated greater freedoms, will affect the ability of employers to require retail, hospitality and other customer facing staff to be vaccinated.

As a result of the changing landscape, some employers can require employees to receive the COVID-19 vaccine.

Which industries are affected by the public health orders?

An employer can and indeed must ensure the mandatory vaccination of its employees affected by public health orders, subject of course to any valid medical exemption. The affected industries and workers in NSW at the time of writing include:

• quarantine workers;
• transportation workers;
• airport workers;
• residential aged care facility workers;
• authorised workers leaving an area of concern for work;
• 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;
• certain health care workers;
• all employees at schools; and
• NSW Police.

The dates by which those various categories must be vaccinated differ, this list continues to grow, and local government areas of concern may change. Employers and workers need to stay up-to-date with all of those changes.

Outside of those industries, can employers mandate vaccination?

Employers can direct employees to be vaccinated if the direction is lawful and reasonable. This is fact-dependent and requires a case-by-case assessment. The April 2021 LSJ article summarised the law on this well. Since then, the Fair Work Ombudsman’s guidance on this issue has been updated and is extracted below.

‘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 and whether the business is providing an essential service)
• the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community
• the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant …
• work health and safety obligations …
• 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)
• vaccine availability.

When undertaking this case-by-case assessment, it may also be helpful as a general guide to divide work into 4 broad tiers:

• Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).
• Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).
• Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).
• Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

A workplace may have a mix of employees, with different employees performing work in different tiers, all of which could change over time.

The coronavirus pandemic doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus.

An employer’s direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected with coronavirus, or giving coronavirus to a person who is particularly vulnerable to the health impacts of coronavirus.

An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of the coronavirus.

For employees performing Tier 3 work:

• where no community transmission of coronavirus has occurred for some time in the area where the employer is located, a direction to employees to be vaccinated is in most cases less likely to be reasonable
• where community transmission of coronavirus is occurring in an area, and an employer is operating a workplace in that area that needs to remain open despite a lockdown, a direction to employees to receive a vaccination is more likely to be reasonable.’

The Fair Work Ombudsman guidance seems to be broadly consistent with the position adopted by the Fair Work Commission in recent cases involving mandatory influenza vaccinations, such as Barber v Goodstart Learning [2021] FWC 2156, Kimber v Sapphire Coast Community Aged Care [2021] FWCFB 6015 and Glover v Ozcare [2021] FWC 2989. While each of those cases involved influenza vaccinations, the trend that has emerged is that requiring an employee to receive an influenza vaccination in higher-risk industries, and being able to take action against an employee who refuses to do so (without sufficient medical evidence) is likely to be considered to be a lawful and reasonable direction that can form a valid basis for terminating employment.

Most employers will employ workers who fall into more than one of the above tiers. Practically, this may mean that an employer cannot adopt a ‘one size fits all’ approach, and requiring some employees to be vaccinated may be reasonable while for others it may not be.

Lastly, if an employer is considering implementing a vaccination policy mandating that some or all of its employees must be vaccinated, then it should carefully consider consulting with their employees (and any relevant trade unions) prior to implementation. Matters for consultation include what grounds may be expressly recognised for potential refusal, and what process should be adopted where an employee indicates  they are reluctant or refuse to become vaccinated.

What happens if an employee refuses to be vaccinated?

If a public health order applies, an employee cannot be permitted back at work until they have complied with the order, but it does not necessarily mean that the employment will need to be terminated.

Absent a public health order, there needs to be an assessment of whether the direction was lawful and reasonable. An employer should consider why the employee has not complied. The reasons for non-compliance may vary from vaccine preference and availability, to hesitancy or being anti-vaccine, or having a medical exemption.

If the employee maintains their refusal to comply with a public health order or a lawful and reasonable direction, an employer will need to carefully consider the individual employee’s circumstances and weigh that up against the role the employee performs, the type of workplace they work in, as well as considering whether there are any other specific health law or public health directions in place. This may include considering whether there are any alternative work arrangements which could be agreed to with that employee, including for a limited period, leave without pay, changes to their duties, reducing contact with other employees and customers, and/or working from home arrangements.

Subject to the considerations above, the reason for non-compliance, and discrimination law, employers may take disciplinary action. This might include dismissal. The reason for the dismissal must be valid, the dismissal must be procedurally fair (if the employee has access to the unfair dismissal laws) and the employer must otherwise comply with the terms of the contract of employment.

Can an employee refuse to attend work because another employee is not vaccinated?

Typically, no. An employee has a statutory right to cease unsafe work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to their own health or safety, emanating from an immediate or imminent exposure to a hazard.

While that might be true if the employee is, for example, working in an area of concern with unvaccinated workers, it is less likely to be the case in a well ventilated, socially distanced workplace in an area with low cases of community transmission. Generally an employer will be able to direct an employee to attend the workplace.

Can an employer encourage vaccination?

An employer can encourage employees to be vaccinated subject to the guidelines set by the Therapeutic Goods Administration (‘TGA’). Those guidelines provide that communications should not reference any company or vaccine brand name, compare different brands of vaccines or their effectiveness, contain statements to the effect that vaccines cannot cause harm or have no side effects, or include any statement that is false or misleading.

Can employers reward employees who choose to be vaccinated?

The TGA has also issued permission to employers to offer valuable consideration (cash or other rewards) to employees who have been fully vaccinated, provided that certain conditions are met. Rewards to employees are allowed, provided they are made available only to persons who are fully vaccinated (two doses), they contain a statement to the effect that vaccination must be undertaken on the advice of a health practitioner, they do not include tobacco or medicines, and if the rewards include alcohol then the offer does not encourage excessive or rapid consumption or appeal to minors. Any such reward offers must also apply retrospectively to employees vaccinated prior to the making of the offer.

What happens if an employee suffers adverse side effects as a consequence of mandatory vaccination?

The Federal Government is developing a COVID-19 Vaccine Claims Scheme to reimburse people who suffer a moderate to significant impact following an adverse reaction to an approved COVID-19 vaccine. The scheme will be backdated to February 2021, and will cover the costs of injuries above $5,000 due to a proven moderate to serious adverse reaction to a COVID-19 vaccination. As of the time of writing, the Federal Government is still developing a portal to submit claims and documentation, however people have been able to register an intent to claim since 6 September 2021.

By the Law Society of NSW Employment Law Committee