As the COVID-19 vaccine rollout in Australia gains momentum, with more than 30% of people over the age of 16 fully vaccinated, businesses are asking whether it’s possible to mandate the COVID-19 vaccine in the workplace. In jurisdictions where workplace manslaughter offences operate, there are issues to consider in respect of both mandating the vaccine and not mandating the vaccine. If a business directs workers to have the vaccine and someone dies, or does not mandate it and someone dies, then that business could be guilty of negligent conduct (which includes an omission to act) that caused the death. The key to managing this risk is taking reasonable action to assess, manage and control the risk.
Some workplaces, such as SPC and Qantas, have already made public announcements that they have mandated their employees get the vaccination. The Australian Government has announced a no fault COVID-19 vaccine claims scheme to reimburse people who suffer a moderate or significant injury following a proven adverse reaction to the TGA-approved COVID-19 vaccine. The scheme is designed to protect employers from costly claims arising from workplace vaccination (although it is open to anyone who’s had an adverse reaction, regardless of where they obtained the vaccine. It will commence on 6 September 2021 (operating retrospectively from February 2021), and will be administered by Services Australia.
In this update, we address what we consider are the key factors you need to be mindful of, when considering whether to mandate the vaccine at workplaces.
Contract of employment
Plan to incorporate vaccination and immunisation requirements in written employment contracts at the commencement of employment. It may be more difficult to mutually agree to vary a contract already in place. We discuss below how to manage situations with existing employees where the contract may not contain such a term, but for new employees we strongly recommend that this now be added into template contracts going forward in the form of an irrevocable consent.
OHS requirements – establishing the right framework first
Businesses have statutory legal safety obligations under the OHS legislation to minimise (given it can’t currently be eliminated) so far as reasonably practicable the risk of workers and others being exposed to COVID-19 in the workplace or arising out of the conduct of its undertaking. The COVID-19 vaccination is one measure in a range of control measures to manage the risk.
A business should conduct a risk assessment of transmission of COVID-19 given the specific operations of the business, and those workers who will be required to interact with others in the performance of their work. After the risk assessment is complete, and having regard to the range of available control measures which are effective in managing the risk (including social distancing, sanitisation, masks and vaccination), the business should then consult with workers and HSRs about relevant control measures to determine what is reasonably practicable to implement in minimising the risk of transmission. The consultation phase will enable issues of medical exemptions and conscientious objection to be voiced prior to a decision being made on any mandatory vaccination direction, including consideration of any relocation to other work activities for medical exempted workers.
The situation of the individual worker must also be dealt with and assessed based on the circumstances of the worker concerned, and take into account the hierarchy of controls in terms of where a vaccination should appropriately sit. This provides the foundation for a “lawful and reasonable direction” discussed as set out in the next step.
Lawful and reasonable direction – safety requirements
The third key factor in considering whether to direct workers to be vaccinated is whether it is a lawful and reasonable direction. This will depend on various factors, including the employee’s circumstances (their duties/risks associated with their work), whether there is a legitimate reason for not being vaccinated (a medical reason/vaccine unavailability), and the extent of the community transmissions in the location where the direction is to be given (for example, NSW compared to Tasmania). Some businesses have permitted time off without pay for workers to receive the jab during usual working hours and provide paid leave in the event a worker experiences side effects from the vaccination.
The Fair Work Ombudsman (FWO) updated its advice on this on 26 August 2021 and stated that a range of factors should be considered by employers when deciding whether a direction to employees to get vaccinated against COVID-19 is ‘lawful and reasonable’. You can access that information here. The FWO has identified four key risk profile tiers to help employers determine whether a direction would be ‘lawful and reasonable’:
- Tier 1 work – where employees are required as part of their duties to interact with people with an increased risk of being infected (for example, workers working in hotel quarantine and border workers).
- 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, workers in health care and aged care). The CIVID-19 vaccination is mandatory for all residential aged care works from 17 September 2021
- Tier 3 work – where employees who are likely to interact with other people such as customers or other employees in the normal course of their employment (for example, employees in a store providing essential goods eg retail staff and authorised workers .
- Tier 4 work – where employees have minimal face-to-face interactions as part of their normal employment duties (for example, employees working from home).
An increase in the transmission of the virus does not automatically make it reasonable for employers to direct employees to be vaccinated against the virus. As such, for our part, we consider that there are additional priorities (which we have set out below) that must also be brought into the mix in terms of supporting a ‘lawful and reasonable’ direction argument.
Government Health Orders/Directions
Government orders/directions will play a critical role in your decision about mandating vaccinations at the workplace. For example, state and territory governments have introduced mandatory vaccinations in respect of certain industries, such as for childcare and disability care workers in NSW.
As noted above, FWO guidance and government directives (such as a public health orders which require workers in certain categories to be vaccinated) aim to support businesses in developing their approach to requiring/directing workers to be vaccinated.
At the time of writing this update, Northern Territory, Queensland, South Australia, Tasmania and Western Australia had introduced public health orders that require certain workers to receive their first dose of COVID-19 vaccination before a set date/before entering a workplace. 
Further, at a federal level it has been agreed that workers in residential aged care in Australia will be mandated to receive the COVID-19 vaccine.  The specific rules (and their exemptions) for each state and territory will be dependent on the health orders/directions issued in that jurisdiction.
We note that in industries where vaccinations are mandated as a requirement to attend workplaces, and workers experience side effects from the vaccination, workers compensation claims are being accepted by insurers. This includes circumstances of an entitlement where the vaccination was not mandatory, and the business promoted having a vaccine. This promotion has been sufficient to satisfy the threshold that the vaccine was encouraged to be taken, such that the injury occurred as a result of taking the vaccine and was therefore incidental to employment.
To some extent we have actually been a bit surprised by the consternation over how vaccination could become mandatory in circumstances where the most likely outcome is that it will simply become a condition of entry to client sites/premises or to be involved with a client/customer’s employees (eg. in the same way, for example, that it is to have a zero alcohol reading).
In our view, where it is necessary for an employee to be vaccinated to meet client requirements, then this can found a lawful direction to staff to do so. This must still be done in the context of the “reasonableness” factors also further below.
Managers/white collar/ HQ staff
In circumstances where front-line workers may be required by their roles to attend office/HQ premises, this can then found the next layer of lawfulness and reasonableness for white collar employees – i.e. to ensure the safety in the event that COVID-19 is carried and transmitted back from site and into office areas. This will be particularly so for co-located offices, as well as where office premises are located off-site but are necessarily attended by front line workers or those who have interaction with others. It may also be that if case numbers substantially rise, then this would found a direction based on the risk presented from catching public transport or being involved in public activities.
The most often overlooked factor is “reasonableness” – i.e. it is one thing for a direction to be lawful, but it must also be reasonable in circumstances where an employee who refuses the direction is likely to have a claim for unfair dismissal.
Factors to consider when assessing reasonableness include the following:
- the availability of vaccine supply/bookings for the employee to access a vaccine
- whether alternate control measures might be available
- the nature of the employee’s role as discussed above in terms of whether they fit into a front line, government-directed or office role
- whether the person’s role could be reasonably modified to avoid external contact with others
- whether they have a medical susceptibility or co-morbidity that puts them in an at-risk category
- whether the employee has a medical susceptibility to the vaccine that might put them at harm from the jab itself
- whether the person has a prohibited attribute or conscientious objection which may render the direction discriminatory
- whether it is fair, weighed against the business and interests of the employer, for the employee to be exempt
- whether there are any other relevant personal or family circumstances which might render the direction unfair or harsh.
Even once fairness is assessed, we should not still rush to any kind of disciplinary action – the usual fairness processes must also still apply as set out below.
Procedural fairness in the application of disciplinary procedures
In circumstances where this will be a “new” requirement for most existing employees (or at least changed from their pre-existing expectations), it is critical to also run an appropriate process to:
- consult and train about the changed requirement
- give employees an opportunity to provide feedback and for that feedback to be maturely reflected on before a final decision is reached
- if a direction is to be given, to give it in clear terms along with the basis of the reasoning for that direction
- give employees the opportunity to comply with that direction (eg. it may take a week or two to get a booking slot for a vaccine)
- if the employee fails to comply, they should be provided with an opportunity to respond in accordance with your disciplinary policy
- in circumstances where summary termination is likely to be harsh, the employee should be provided with a warning and then an opportunity to reflect on whether they would now wish to comply in light of the new gravity of the impact on their employment should they not comply
- a clear direction would then need to be re-issued
- if the employee fails to comply, they should be provided with an opportunity to respond in accordance with your disciplinary policy as against the warning given, and
- termination should only proceed after a suitable number of warnings and opportunities were given (including a final written warning) and consideration of proportionality and harshness in all the circumstances (eg. if they really do continue to be a conscientious objector, is there anything they can effectively suggest to take accountability for their own safety going forward which you can have trust and confidence in).
It may or may not be the case that such trust and confidence can be maintained, but that must be a judgment made in respect of each individual’s circumstances.
If you plan to implement a direction mandating the COVID-19 vaccine at your workplace, consider the steps above and if you need any assistance given your specific business activities, or individual worker scenarios, just let us know.