Can I introduce a mandatory Covid vaccination policy to my workplace? September 1, 2021

The no jab, no job debate is gathering steam as questions arise about whether employers can mandate employee vaccinations

In August 2021, food processor SPC became the first Australian company to impose a mandatory Covid vaccination policy on its workforce. A few weeks later, Qantas made a similar announcement, prompting much debate about whether compulsory vaccination policies in workplaces are legal, their implications, and how they may operate.  

What is the background to mandatory vaccinations? 

Legislative reforms have introduced mandatory vaccinations for particular occupations, including healthcare workers under Victorian legislation, and aged care workers under federal legislation. However, vaccinations have not been made mandated for other industries, meaning any directions for employee vaccination must be within the scope of current workplace laws. 

What does current workplace law say about employee vaccination? 

Employers may only direct their employees to be vaccinated if: 

1. There is a specific law, such as a public health order, that requires vaccination in their workplace due to the nature of work undertaken; or 
2. It would otherwise be lawful and reasonable to give this direction to employees

What is a lawful and reasonable direction? 

It will be up to individual employers to prove that their direction is lawful and reasonable, with many factors considered, such as: 

1. Vaccine accessibility and effectiveness
   If the vaccine is not accessible, it would be unreasonable to impose a mandate on employees. This factor may also be influenced by which vaccine is available at the time (for example, Pfizer or AstraZeneca), and its effectiveness in reducing the risk of transmission or serious illness caused by Covid-19.
2. The tier system
   The Fair Work Ombudsman’s tier system provides guidance about how this test will interact with various types of work. Occupations are assigned to different tiers based on various considerations including whether:

• An employee is required to interact with people with an elevated risk of Covid-19 infection
• An employee works with people who are vulnerable to the Covid-19 virus
• An employee works predominantly in a public-facing role

The tier system is outlined below and also can be found on the Fair Work Ombudsman’s website. 

Tier 1 work:
Employees are required to interact with people who have an increased risk of being infected with Covid-19 (for example, hotel quarantine or border control employees)

Tier 2 work:
Employees have close contact with people who are vulnerable to the health impacts of Covid-19 (for example, health care or aged care employees)

Tier 3 work:
Employees interact with other people such as customers, other employees or the public (for example, stores selling essential goods and services)

Tier 4 work:
Employees have minimal face-to-face interaction as part of their normal duties (for example, working from home)

The Fair Work Ombudsman has observed that an employer vaccine direction is more likely to be lawful and reasonable for tier 1 and 2 workers. However, the tiers are a guide only. Each workplace will be considered on a case-by-case basis using further considerations such as the extent to which community transmission of Covid-19 has occurred in the workplace’s location.

Are employers obliged to consult with employees?

Most workplaces are covered by employment instruments such as awards, enterprise agreements, or other registered agreements. The employment instrument will probably require the employer to consult with employees before implementing significant policies, including mandatory vaccination. Employers check the employment instrument to work out who to consult with, and how consultation should occur. If consultation requirements are not met, it is likely that the direction will be unlawful.

Employers can take other steps to make a vaccine direction more reasonable, including:

• Covering the employee’s travel costs to and from the vaccination clinic
• Providing leave or paid time off for employees to get vaccinated
• Ensuring employees have access to reliable and current vaccine information 

While the above factors may be considered, a determination of whether a direction is lawful and reasonable will be considered on a case-by-case basis. Other factors may be relevant in particular industries, and the weight given to certain factors may be change depending on the circumstances.

Are there any exceptions and lawful excuses?

While a direction may be considered lawful and reasonable for most of a workplace, it may not be for an individual employee. The employee’s circumstances, such as their duties and the risks associated with their work, may be relevant. An employee may also refuse to be vaccinated for a legitimate reason, such as a pre-existing medical condition. 

To manage this, an employer should consider all issues before imposing a direction.  

How will a mandatory Covid vaccine policy interact with anti-discrimination law?

Employers should be wary of how their Covid-19 vaccination policy interacts with their responsibilities under state and federal anti-discrimination legislation. A contravention may mean that the policy is unenforceable, or it may attract penalties.

For example, the Equal Opportunity Act protects an employee from discrimination due to specific protected attributes, including:

• Disability
• Pregnancy
• Religious beliefs

If an employee’s reason for not being vaccinated is connected to a protected attribute (in other words, they have a disability preventing them from being vaccinated), the employer may need to allow an exception to its policy. 

However, discrimination on the basis of these protected attributes may be allowed if it is reasonably necessary to protect the health and safety of any person, or the public generally. Ultimately, this suggests that employers will need to consider if this health and safety exception applies, or if their policy will be subject to reasonable exceptions. If so, what these exceptions will entail and the procedure under which they will be verified.

Are there any privacy considerations? 

Information about whether an employee is vaccinated, or information outlining why they have chosen not to be vaccinated (including medical evidence), will be considered sensitive information. It can be requested by the employer only in limited circumstances. 

An employer may request sensitive information if it is reasonably necessary for the employer’s functions and activities. Even still, it will require consent unless subject to exceptions. In obtaining consent, an employee will be required to take reasonable steps to disclose: 

• The purpose of collection
• The consequences if the employee refuses to consent to the collection
• Whether the collection is required or authorised by law
• How the employer may use or disclose information about the employee’s vaccination status; and
• That the Privacy Act contains information about how the employee may access their personal information, seek correction of their personal information, make a complaint about a breach of the Privacy Act and how the employer will deal with such a complaint

Please note however that this area is subject to change, particularly in response to any future health orders.

How are other employees impacted?

If one employee chooses not to be vaccinated, a further issue may arise if other employees refuse to attend the workplace. An employer may accept these wishes and make alternative arrangements for the employee who refuses to attend the workplace. However, if the refusal is not appropriate, the employer can direct the refusing employee to attend. Again, an employer may only make this direction if it is lawful and reasonable. The following factors may be relevant in determining this question: 

• Whether the vaccination is mandatory in the workplace 
• The worker’s reason for refusing vaccination
• Whether alternative working arrangements are possible

The final word

At this stage, it appears that mandatory vaccination cannot be imposed in most workplaces. However, these issues are complicated, and the law is likely to change as the rate and accessibility of vaccination increases and further legislative and judicial guidance becomes available.

For SPC and Qantas, the progress of their test vaccination policies will be monitored by employers and the legal community Australia-wide, especially if a policy is legally challenged.

In the meantime, contact us for advice about mandatory Covid vaccinations in your workplace.