Mandatory Covid-19 vaccinations in the workplace
No Jab, no work?
With the imminent rollout of the COVID-19 vaccination program in Australia, a question on the minds of many employers is…….
Can I direct my staff to get the COVID-19 vaccine?
The simple answer is some employers in certain industries might be able to, and other employers probably cannot.
It will most likely depend on your operating environment. Some of our members who are in the health, aged care and disability services sectors may be able to. The Australian Government is certainly indicating that frontline workers in these sectors will have top priority when the vaccine is rolled out. There are obvious risks associated in working with vulnerable people in high-risk categories.
For other industries, things are a little more uncertain. While it might be considered reasonable for mandatory vaccination in high-risk sectors, it is likely to be different for an office or school environment for example.
What rights do employers have to mandate their employees get vaccinated?
Employers have health and safety obligations in their workplaces and the right to issue lawful and reasonable directions to employees.
To help identify if a COVID-19 vaccination is an inherent requirement of an employee’s role, the following factors may need to be considered:
- What is the nature of the role?
- What are the health and safety risks if an employee in the workplace is not vaccinated?
- Are there other measures that have, or can, be put in place to mitigate against the risk of COVID-19?
- What, if any, adverse effect has the COVID-19 pandemic had on your operating environment?
One area of comparison is employers who have introduced mandatory flu vaccines for employees working with vulnerable people, such as aged care and other health settings. Even with the introduction of mandatory flu vaccines, employee exemptions must be considered for example on medical grounds, religious reasons, pregnancy, or a person’s right to refuse. Mandatory COVID-19 vaccinations would be the same.
Some employers may be able to make the COVID vaccine mandatory for some or all staff, as a reasonably practicable health and safety measure and/or a reasonable management direction. However, any mandatory vaccination policy should be underpinned by a health and safety risk assessment.
Given the uncertainty and that some groups may have a legitimate basis for refusing the vaccine, irrespective of the work environment they are in, it is recommended you seek advice before disciplining employees in these categories.
What are the risks?
The risks of disciplining or dismissing an employee who refuses to be vaccinated are an adverse action or discrimination claim, for example, if an employee claims they are unable to be vaccinated due to a physical disability. Dismissal can also lead to an unfair dismissal claim.
The problem is, there is limited guidance on what would amount to ‘reasonable management action’. There is currently one such case before the Fair Work Commission where an aged care worker is claiming unfair dismissal for refusing the flu vaccine based on medical reasons. The outcome of this will be closely followed and hopefully provide some guidance to employers on the reasonableness of a direction to receive a COVID-19 vaccination.
Employers should take the time to carefully consider the risks associated with their workplace and whether mandatory vaccination is likely to be a lawful and reasonable direction or whether encouraging voluntary uptake of the vaccine will be a more proportionate response.
The Industrial Relations Minister, Christian Porter, this week said that it is expected state health orders will be the primary tool to drive vaccination rates, just as they did last year to require influenza vaccinations in aged care facilities.
The minister said it was noted in the meeting that the Australian Health Protection Principal Committee (AHPPC) does not presently advise in favour of the use of state/territory powers in the form of public health orders to create specific vaccination requirements in aged care facilities.
In a statement on 23 January, it strongly encouraged COVID-19 vaccination but did not at this stage recommend mandating it for the aged care workforce.
Porter’s comments came after discussions with employer groups and unions about the planned workplace vaccine rollout, during which employers raised concerns about legal liability.
There is no doubt much to consider in an area that will continue to evolve once COVID-19 vaccinations become widely available later this year.
CCER will continue to monitor this closely and will provide further advice to members when available. In the meantime, if you would like to discuss your specific circumstances, please contact our Employment Relations Specialists on 9390 5255 or email email@example.com.