Vaccination mandates in the workplace - points to ponder
Now that COVID-19 vaccines are available to a wider range of the workforce, employers are now grappling with whether or not they ought to require their staff to be vaccinated before coming back to the office. New South Wales and Victoria continue to be in the grip of lockdowns, and employers are looking forward to a time when case numbers finally come down and offices can be filled with their staff.
This article considers the legal ability of employers to direct their staff to be vaccinated, considering the contract of employment, occupational health and safety obligations, commercial considerations, and other, potentially less heavy-handed approaches to encouraging vaccination in staff.
Ultimately, the decision whether to require staff to be vaccinated comes down to the employer making an assessment as to risk; that is, risk to staff, risk to clients / customers, and risk to the business. This risk assessment must ultimately be balanced against an employee’s choice whether to be vaccinated or not, and whether it is reasonable and lawful to require a particular employee to be vaccinated.
Reasonable and lawful directions
At common law, implied into every contract of employment is the obligation of employees to comply with reasonable and lawful directions given by their employer. Whether a direction is lawful is generally easy to determine – as long as it is not in contravention of a provision of the employment contract, or not otherwise contrary to the law (as contained in statutes, regulations, or industrial instruments), a direction will generally be lawful.
Whether a direction is reasonable can be more difficult to determine. The reasonableness of a direction will depend on the facts and circumstances of each workplace, and indeed, each employee.
At it relates to whether a direction to undergo vaccination is reasonable, employers need to consider the following matters:
- The employer’s duties under relevant work health and safety legislation to ensure the health of employees and to ensure that others are not put at risk from the work of the business;
- The nature of the industry – for example, whether people are under the care of the employer, whether safety is of high importance, whether staff, customers, or clients are particularly vulnerable;
- The legitimate needs of the employer;
- Managerial prerogative;
- Whether there are government recommendations in place regarding workplace vaccinations;
- The ability to effectively physically distance in the workplace;
- Whether personal protective equipment is likely to be effective;
- Whether employees have had a chance to provide input or be consulted as to a vaccine mandate;
- Whether it might be discriminatory to require an employee to be vaccinated.
The question of what is reasonable hinges on whether a reasonable employer in the position of the actual employer and acting reasonably could have issued the direction. The direction will not be unreasonable just because a better or different policy could have been instituted.
Much has been made in recent commentary regarding whether requiring vaccination could in some circumstances be unlawful discrimination.
For example, a medical condition may prevent an employee from being vaccinated. An employer would need to consider whether requiring vaccination could be discriminatory under the Disability Discrimination Act 1992 (Cth). The employer would need to consider that employee’s individual circumstances when deciding whether they are able to continue performing the role without being vaccinated.
An employer may be able to make reasonable adjustments to the role to enable the employee to perform it. However, if adjustments would impose an unjustifiable hardship on the employer, or if the inherent requirements of the role dictate that the employee must be vaccinated, the employer may be in a position where they have no option but to terminate the employee’s employment.
A similar situation to the above would arise in circumstances where an employee’s religious belief dictated that they could not be vaccinated, albeit only in states where State anti-discrimination legislation included a prohibition on religious discrimination.
An employee’s personal view that they do not wish to be vaccinated is not an attribute that would be protected under anti-discrimination legislation. That is, it would not be unlawful discrimination for an employer to treat such an employee less favourably than an employee that was vaccinated.
- Business requirements
In addition to the OHS considerations, employers can of course take commercial or business considerations into account when deciding whether to require staff to be vaccinated. For example, a business may consider that having all staff vaccinated is a good marketing strategy.
Where an employer requests evidence of employee vaccination status, any information provided by the employee will need to be treated in accordance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles. Vaccination status would be considered “sensitive information” under the Privacy Act and the collection of this information would be subject to the consent of the employee.
Employers also need to be aware of any consultation obligations that may apply to their employees through the operation of any industrial instruments, for example Modern Awards or enterprise agreements. Such instruments generally contain clauses requiring employers to consult with employees regarding major workplace changes, and it is likely that introduction of a vaccination policy would trigger the requirement to consult.
Helpfully, the Fair Work Ombudsman has given guidance as to in what circumstances a direction to be vaccinated may be reasonable and lawful. It has separated work into four ‘tiers’ to assist employers in determining whether a direction to be vaccinated is reasonable:
- 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 softer touch
Rather than blanket mandates, employers could consider providing incentives (or disincentives) to employees to get vaccinated. Such measures could include:
- Offering extra “vaccination leave” days over and above personal leave days to enable staff to take time off to get vaccinated, and if necessary, recover from side effects;
- Requesting that staff provide their vaccination status;
- Requiring non-vaccinated staff to wear masks in the office while relaxing mask restrictions for vaccinated staff (providing that any public health directions are being adhered to);
- Requiring non-vaccinated staff to work from home;
- Permitting only vaccinated staff to attend social events, such as Christmas parties or staff drinks.
The issue of whether to mandate vaccinations in a workplace is a major decision for employers and not one to be taken lightly. The issues associated with the decision can however be appropriately addressed if employers take the time to consider their business requirements and implement policies that are tailored to their situation. For any queries that may arise for your business, please do not hesitate to get in touch with James Francis - Senior Associate and Head of Employment Law on 03 9629 7411.