Navigating the murky waters of mandatory vaccination

The COVID-19 pandemic reduced work hours and tightened margins for many businesses across Australia, but one industry is bucking that trend. Employment law has never been busier.

Lawyers caught in this extraordinary boom say they are being inundated with requests for advice from individuals who refuse to be vaccinated against COVID-19, despite public health orders and new workplace policies requiring them to do so. Employers, too, are frantically appealing for guidance over how far they need to go to stop the virus entering their workplaces, and whether they’d be liable for breaching workplace safety laws if they have unvaccinated employees transmitting the disease.

“We are getting hammered with enquiries. My whole team is flat out. Maybe speak to another firm about it,” replies one partner at a Sydney firm with extensive experience in employment law, when I ask to interview him on the subject. When I receive the same response from a handful of other employment law and human resources experts representing employees and businesses large and small, it becomes clear the issue is not isolated.

Carly Stebbing, the founder of employment law firm Resolution123 and a member of the Law Society of NSW’s Employment Law Committee, has a rare free moment to chat over the phone. She is “up to [her] eyeballs” in COVID-19-related work and fielding “five to 10 inquiries per day” about vaccination policies.

“Mandatory vaccination is basically the theme of every employment lawyer’s life at the moment,” she says. “There’s virtually no other inquiries coming through whether you’re an employer-facing or employee-facing firm. It’s taking up all of our time.”

Stebbing says the inquiries are surging in the lead-up to Christmas, as NSW approaches its final “freedom day” on 15 December when the state will open fully for all vaccinated and non-vaccinated people.

“Obviously, employers have this duty of care to ensure the health and safety of their workforce. Up until now it’s been easier because a lot of people have been working from home and unvaccinated people have been unable to attend restaurants and so on,” she explains.

“The problem is that in December, everyone will be free to move around in NSW whether they’re vaccinated or not. When that happens, employers will be thrust into this new world where it’s up to them to decide what they’re going to do about preventing COVID-19 in their workplace.”

What’s reasonable in unprecedented times?

The word “unprecedented” has been bandied about plenty over the past 18 months, but the level of interest in the law surrounding mandatory vaccination policies seems exactly that. While court cases usually attract a handful of general members of the public to attend in-person hearings (mostly journalists and family of the parties) a recent test case on vaccine mandates, heard online in October, attracted more than 1.4 million views on the Supreme Court YouTube channel. The live audience peaked at more than 50,000 viewers, while hundreds of thousands watched later on demand.

An LSJ article Stebbing co-wrote with the Law Society of NSW Employment Law Committee skyrocketed to the most-clicked article on this magazine’s website ever. It has earned more than seven times the number of clicks of previous most-popular articles on the site.

Stebbing says the overwhelming interest in this topic stems from widespread uncertainty. Employees don’t know where they stand if they refuse to be vaccinated; can they be fired? In what circumstances or industries is termination for refusing a vaccine lawful? Likewise, businesses are weighing up the risks and benefits of introducing mandatory vaccination policies. Will they be sued for discrimination? Will they be hit with workers compensation claims if COVID-19 spreads in the workplace?

“People are coming to us and asking, can we do this? And we say, well, arguably yes. But you might be the test case,” Stebbing says.

Under Australian workplace laws, bosses are entitled to issue “lawful and reasonable” directions to employees that will safeguard their health and safety. Construction site managers require builders to wear hard hats and use safety equipment onsite as a reasonable step to prevent injury, for example. As COVID-19 is thrown into the workplace health and safety mix, the question becomes whether mandatory vaccination is a reasonable measure to take in safeguarding workers.

Public health orders in NSW have directed “front-line workers” such as teachers, airport workers and hospital staff to be vaccinated by a certain date. The Supreme Court has held mandatory vaccination directions are lawful in industries covered by such public health orders, which were tested in the case viewed by more than 1 million people on YouTube, mentioned above. A group of 10 people including teachers, construction workers and nurses attempted to challenge the validity of the orders in NSW but failed as the court refused to overrule government policy. Justice Beech-Jones noted the court’s function was not to make political or medical decisions on vaccinations but to determine the legality of orders made under the Public Health Act.

“There are statewide public health orders in NSW that apply to everybody employed in those sectors. There’s no real grey area there,” Stebbing says. “The part that is tricky for employers is navigating the grey area where there is no public health order, but you do have a duty of care to ensure the health and safety of your employees at work.

“The worst-case scenario for businesses not introducing a mandatory vaccination policy is that the employer is held liable for the deaths, or any ongoing illness or injury of employees contracting the virus at work.”

According to data gathered by ABC, about 3,000 COVID-19-related worker’s compensation claims have already been lodged around Australia since the pandemic began. Dr Giuseppe Carabetta, a Senior Lecturer in employment law at the University of Sydney, says there has been “what can only be described as a flood of workers compensation claims in Victoria”.

“Workers’ compensation claims for COVID-19 are expected to climb sharply now that we are freeing up, and the industry regulator has predicted a bill of over $600 million in a year. Additionally, civil law or negligence claims are a possibility,” Giuseppe says.

Stebbing adds there has already been at least one case decided in which an Australian business sent an employee to work in the US, where they contracted COVID and died. The employer was held liable for the death and slapped with a compensation payout to the tune of $800,000.

Uncharted waters

The Fair Work Ombudsman has released guidelines for employers to consider the nature of workplaces in deciding whether a mandatory vaccination policy is reasonable. Some considerations listed include the extent of public-facing work in employees’ roles, whether distancing is possible, whether the service is essential, the extent of community transmission and vaccine availability.

To assist, it has defined four broad tiers of employee. Tier one and two workers, according to Fair Work, are in industries like hotel quarantine and border control, aged care, or health care where mandatory vaccination is likely to be reasonable and justified. However, the third and fourth tiers cover industries where there is less interaction between other people, customers, and the public, or where employees may work from home a lot. These are the industries where reasonableness seems less clear.

“We really are in uncharted waters here in terms of the right of an individual to bodily integrity as opposed to the collective community right to life and health,” says Greg Barns SC, a human rights barrister who is increasingly being called on to advise on issues surrounding vaccination policies.

A survey by The Sydney Morning Herald of 60 large companies in Australia found more than two thirds would require vaccination for at least a part of their workforce by the end of the year. These include the Commonwealth Bank (vaccination compulsory for onsite staff), CSL (compulsory for all staff and visitors by December 31), BHP (compulsory for onsite staff) and Westpac (compulsory for onsite staff).

Some workplaces have already been forced to stand down workers due to public health orders requiring vaccination. Nearly 5,000 unvaccinated teachers in NSW have reportedly been suspended from work in November. Barns says there are more job losses to come – and it’s not just conspiracy theorists or anti-vaxxers.

“A common view I have heard is that people are concerned by the rapid pace by which these vaccines have been developed. Other people are saying, well, mandatory vaccination is an extreme measure [to prevent COVID-19 in the workplace], and what are the less extreme alternatives?” Barns explains.

“Some would prefer to undergo rapid antigen testing. That may be a better way to balance the rights of the individual to bodily integrity, and to allow people to make their own decisions, alongside what is a very important community right – to have safe workplaces and safe public places.”

A national approach

Prime Minister Scott Morrison has reiterated throughout the pandemic that vaccination shall be “free and not compulsory” for Australians who seek it. But in practice, public health orders have stymied unvaccinated people from going about their regular, pre-COVID lives and work.

“The federal government has been very clear that vaccines were meant to be voluntary, right?” Stebbing says. “But it’s not completely true to say that something is voluntary when your job is on the line. Okay, your employer can’t literally force a needle into your arm – but if you don’t get vaccinated, your job is at stake.”

Tess Deegan is an employment lawyer at Kingsford Legal Centre, a community legal centre that assists clients from low socio-economic backgrounds. She says the impact of mandatory vaccination is hitting these people hardest.

“People are in really tough situations, after facing a lot of financial hardship for two years, and now that the COVID disaster payment isn’t being provided anymore,” she tells LSJ.

“My perception is that the people who have been bearing the brunt of COVID-19 are now the same groups of people who really are most affected by a decision not to be vaccinated. It’s health workers, it’s hospitality workers, it’s people who can’t work from home in their office jobs. Construction workers, people who’ve been subjected to a frequently changing and confusing set of public health orders and have really been struggling in a lot of ways throughout the whole pandemic.”

The extent to which vaccination has, in effect, become mandatory varies state to state. In Western Australia, which has remained virtually COVID-free, unvaccinated people can still go to work and participate in most public activities. In NSW, many can’t. Barns says Australia’s lack of nationally consistent human rights legislation, or even a national law about COVID-19 vaccinations, further complicates employment law matters.

“I think its undesirable to have different rules in eight separate jurisdictions in Australia,” Barns says. “We’ve seen this right through COVID – that the rules are different in one jurisdiction to another and I think that’s been a source of great frustration for people, because people like certainty about the law.”

Angus Macinnis, a Senior Lawyer at StevensVuaran Lawyers who specialises in workplace, employment and human rights law, says the misinformation that has plagued this pandemic also now surrounds legal knowledge and employment rights.

“One of the major issues we have seen is that people say, ‘Oh but I saw on the news X’, which is some change in Victoria that doesn’t apply in NSW,” he says. “As state governments begin to mandate vaccinations for certain industries, it’s creating a very patchwork system between states and territories, and a patchwork understanding of rights and laws.”

The other issue, Macinnis explains, is that each jurisdiction in Australia has seen very different levels of COVID-19. The understanding of reasonableness in vaccination policies will differ between states that have starkly different rates of community transmission.

However, after seeing how quickly the situation can change and witnessing the highly infectious Delta variant run rampant just months ago in NSW, Stebbing says she would lean towards making vaccines mandatory in workplaces that are not operating entirely online.

“My team is all completely remote, so I don’t have a mandatory vaccination policy. But I have to be honest, if I ran a bricks-and-mortar law firm, and had people coming in to see me, I would probably mandate vaccination,” she says.

“Lawyers are dealing with a lot of different people, a lot of clients who are potentially vulnerable clients. Even though I recognise the potential fallout and impositions on civil liberties arising from a mandatory vaccination policy, I guess as a lawyer with my understanding of the workplace health and safety regime, my instinct would be that vaccination needs to be adopted.”

In unprecedented times, one part of the foreseeable future is clear: employment lawyers of Australia are going to be busy.