Mandatory COVID-19 Vaccinations: No Jab, No Job?

The Qantas Group (Qantas) has announced that it will require all employees to be fully vaccinated against COVID-19 by 31 March 2022. For frontline staff, that date is even sooner, at 15 November 2021. The announcement made Qantas just the third Australian company to publicly declare their intention to make vaccinations mandatory for their workers, and has reignited discussions amongst employers and unions on mandatory workplace vaccinations.

Qantas’ decision was made following consultation with its workforce. In a survey of its staff returning 12,000 responses, 60% of employees confirmed that they were already fully vaccinated, 77% had already had at least one dose of a vaccine, and a further 12% had booked or were planning to be vaccinated. Only 4% said they were unwilling or unable to be vaccinated. Overall, 75% said that they would be ‘concerned’ about working with unvaccinated colleagues. Despite this, the Transport Workers’ Union has released a statement arguing that Qantas failed to appropriately consult with its workforce.

Following Qantas’ announcement, many employers are eager to follow suit and require their staff to vaccinate against COVID-19. However, with government advice consistently changing, increased union involvement in the space, and other commercial and practical realities to bear in mind, many employers are still struggling with the question: can we require mandatory vaccinations amongst our staff?

In this article, we will provide a summary of the current guidance on COVID-19 vaccinations, and unpack some of the legal risks employers are exposed to when seeking to mandate vaccinations in the workplace.

Supporting employees to get vaccinated

Before considering whether to mandate COVID-19 vaccinations in the workplace, employers should consider what support they have provided to employees to get vaccinated. In considering what employers can do to communicate, encourage and support employees to get the vaccine, they may:

• provide employees with reliable and accessible information regarding the vaccine;
• offer internet access or language support services to help employees book appointments;
• consider a reward or incentive scheme;
• be accommodating and flexible with rosters where practicable to facilitate employee attendance at appointments;
• facilitate paid or unpaid leave in order to attend an appointment to receive a vaccine; and
• if viable, offer on-site vaccinations at the workplace.

If employees are supported in their efforts to get vaccinated then any subsequent efforts towards implementing a mandatory vaccination policy, may be received more positively by employees.

Work health and safety considerations

Employers across every industry in Australia have important work health and safety obligations which require them to ensure, so far as is reasonably practicable, the health and safety of their workers (including in relation to the spread and transmission of COVID-19).

No single control measure will, in isolation, be effective to eliminate the risk of exposure to COVID-19 in the workplace. The COVID-19 vaccine is but control measure available but it may not be reasonably practicable to implement in your business.

In circumstances where a state or territory’s public health order requires staff to be vaccinated, a direction that employees vaccinate against COVID-19 is likely a reasonably practicable step that employers must consider in line with their responsibilities under Work Health and Safety laws.

However, in circumstances where there is no clear government requirement to mandate vaccination, many employers are increasingly struggling to balance their work health and safety obligations against their privacy, and other obligations toward staff. Importantly, employers must continue to have regard for reasonably practicable steps they can take to discharge their obligations under Work Health and Safety laws and whether that includes mandatory vaccination, will depend on the circumstances of each business.

Fair Work Ombudsman asks employers to exercise caution

The Fair Work Ombudsman (FWO) has encouraged employers to exercise caution when making vaccines mandatory for employees. In the Ombudsman’s view, a requirement for employees to be vaccinated is permissible if:

• a specific law (such as a health directive) requires an employee to be vaccinated;
• a specific industrial instrument (such as an enterprise agreement, modern award, or employment contract) allows the requirement; or
• it would be lawful and reasonable for an employer to direct employees to be vaccinated.

Employers should be aware that there are legal risks associated with giving a direction that is not lawful and reasonable.

Is a direction to get a vaccination likely to be lawful and reasonable?

Broadly, unless a specific health directive requires vaccination, most employers, like Qantas, will be relying on an argument that a direction to be vaccinated is ‘lawful and reasonable’ if they are looking to implement a mandatory vaccination policy.

Whether or not a direction to be vaccinated is ‘lawful and reasonable’ will depend on the circumstances. The Ombudsman has suggested the factors to consider include but are not limited to:

• the nature of the employee’s role and the work being performed;
• the industry in which the employer operates;
• the public health environment, including the extent of community transmission where the direction is to be given;
• an employer’s work health and safety obligations;
• vaccine availability; and
• the extent of in-person public interaction between the employee’s duties and the possibility of social distancing; and
• each employee’s individual circumstances.

My business wants to introduce a mandatory vaccination policy…what now?

Any decision to implement a mandatory vaccination policy should be made in the context of the relevant considerations outlined above and after having sought independent advice.

This is a rapidly developing space, and with so many moving targets, there are several key risks and other factors that employers should be aware of, before seeking to mandate vaccines for their staff. They include, but are not limited to:

• a need to ensure compliance with Australian privacy laws. For example, the Australian Privacy Act (1988) (Cth) provides for 13 privacy principles that regulate the way some employers must deal with, collect, store, or use ‘private’ information such as vaccination records. Civil and criminal penalties may apply for any breaches;
• a need to ensure compliance with anti-discrimination laws, which prohibit employers from treating employees with protected attributes (such as age, disability, age, pregnancy, etc) differently based on their protected attributes;
• a need to ensure appropriate consultation with workforces prior to implementing the vaccine, as required under various industrial instruments and work health and safety legislation. Any failure to consult with workers could present legal risk and impact the prospect of success of future legal proceedings, including dismissal claims arising from a failure to comply with the policy; and
• a need to ensure appropriate measures are in place for dealing with refusals, exemptions, changes in government directives, changes in the availability of vaccines, or a dispute being bought by an employee.

Employers who mandate vaccination policies but are not prepared to address or respond to the above issues relatively quickly may find themselves in a battle with unions, employees, or regulatory bodies.

If you are considering implementing a mandatory vaccination policy or directive, but want to better understand your obligations and risks, contact NRA Legal on  1800 572 679. The NRA Legal team is available to make sure you follow the right process, are well prepared to respond to the rapidly changing regulatory environment, and have appropriate safe-guards in place in the event a dispute arises.

By Sarah Morison and Lindsay Carroll, NRA Legal