Can employers force employees to be COVID-19 vaccinated?

In January of this year, we examined whether employers could force employees to be COVID-19 vaccinated when the vaccine became available. At that time, whilst still isolated from the rest of the world, there were relatively few cases of COVID and those cases were confined to hotel quarantine. International travel bubbles were even being discussed and all of us could enjoy the domestic freedoms prior to the pandemic.

Then the Delta variant broke loose in the community causing nationwide lockdowns, the most serious and persistent being in NSW and Victoria. It is now apparent that widespread vaccination is the only way the NSW and Federal Governments will allow society to return to pre-Covid freedoms.  This has placed the issue of mandatory vaccination at the forefront of many employers’ thoughts. In this alert, we re-examine our January 2021 advice to employers and employees regarding their rights with respect to COVID vaccination and some of the current trends we have identified.

Can Employers Direct Employees to Receive the COVID Vaccination?

Employers can only require their employees to be vaccinated where:

• a specific law (such as a state or territory public health order) requires an employee to be vaccinated;
• the requirement is permitted by an enterprise agreement, other registered agreement or employment contract; or
• it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis.

From 17 September 2021, the Federal Government has made it mandatory for all residential aged care workers to have received their first dose of a COVID-19 vaccine. This is in line with already existing public health orders in some States and allows private employers to make COVID vaccination an inherent requirement of the position. The Federal Government is also being encouraged, from within its own ranks, to extend that mandate to all aged care and disability workers and this may extend to employees within the airline industry and health sector.

However, the vast majority of employers in Australia will likely not enjoy the ‘luxury’ of relying on public health orders or other government regimes to enforce a mandatory COVID vaccination policy. Are these employers able to mandate vaccination? If they wish to do so they will need to determine whether a vaccinated workforce is essential to ensure a safe workplace such that a direction to staff to get vaccinated is reasonable in the circumstances.

Opening the batting is SPC Australia who, on 5 August 2021, mandated that all casual and permanent staff as well as contractors must be fully vaccinated by the end of November to gain entry to any company location. Furthermore, any visitors to an SPC site would also need to be vaccinated. Their principal reasoning for the decision is that lockdowns are not a long-term solution, and that vaccination is the only way to propagate a safer workplace. The secondary reason SPC rely on is that it provides an “essential service” in so far as it is a producer of food products. SPC’s decision was met with a lukewarm reception by the Australian Manufacturing Workers Union which, although agreeing with the company’s decision in principle, felt that SPC had not adequately consulted with its workforce prior to making what was essentially a unilateral decision affecting major workplace change.

QANTAS has also introduced a mandatory vaccination policy which requires that all its “frontline workers” (including cabin crew, pilots and airport employees) must be fully vaccinated by 15 November 2021 and the rest of its employees by 31 March 2022. The policy allows exceptions for those who cannot be vaccinated for valid medical reasons but will be subject to other measures such as compulsory wearing of masks, social distancing and regular testing.

On 30 August 2021, Virgin Australia also announced that it was “considering” following QANTAS in rolling out a mandatory COVID vaccination policy and as per QANTAS’ timetable for frontline workers and other employees but intended to consult with its employees and the Transport Workers Union before rubber stamping the policy.

Current Legal Position

At present, there is no legal authority on which employers can rely with respect to mandatory COVID vaccination; however, as traversed in our January 2021 client alert, there have been several cases heard in the Fair Work Commission regarding mandatory flu vaccination, which suggest that the judiciary are sympathetic to employers who direct employees to vaccination in circumstances that are reasonable. In the recent matter of Barber v Goodstart Early Learning [2021] FWC 2156, the applicant refused her employer’s direction to get an influenza vaccination on account of her purported “sensitive immune system”. Her employer considered her medical certificate to be insufficient grounds for refusal to follow a lawful and reasonable direction and subsequently terminated her employment. The Fair Work Commission held that the direction for childcare educators at Goodstart Early Learning to receive a mandatory influenza vaccination was lawful and reasonable and that the employee’s refusal to be vaccinated was a valid reason for termination of her employment.

This authority provides comfort to employers on three key grounds. The first is that the courts and tribunals are likely to have little mind to employee arguments that mandatory vaccination is an ‘assault on their person’ as contended in Arnold v Goodstart Early Learning Limited [2020] FWC 6083. The second is that valid medical grounds will be a consideration but not an impediment to directing employees to vaccination; the third suggests that it is not a breach of employee privacy for employers to request evidence of vaccination or reasons of medical exemption.

Nonetheless, we expect a tranche of cases brought before the Fair Work Commission and higher courts in the coming months that will challenge these indicia.

What Position Should Employers Take?

The most contentious question employers are currently asking themselves is whether they should roll out a mandatory COVID vaccination policy or whether it should employ a policy that strongly encourages voluntary vaccination by way of incentives.

A combination of factors may be at play which make that decision more straightforward. For example, employers operating in the healthcare sector, whose employees have intimate contact with the general public, might mount a compelling argument as to why compulsory vaccination is an inherent requirement for the safety of patients and staff alike. Likewise, the hospitality industry might mount the argument that the inevitable handling of food and beverages by its employees dictates that compulsory vaccination is the best way to provide a safe environment for staff and patrons. Finally, the current differing health regulations in each jurisdiction make it very difficult, for example, for employees who live near state borders and need to cross borders for work. Employers with a workforce that is subject to these difficulties might consider standing down employees who refuse get vaccinated an unsatisfactory remedy. The better remedy might be to issue a direction to employees to get vaccinated, the disobedience of which may lead to disciplinary action up to and including termination of employment.

Ultimately, each employer must ask itself the following questions before deciding on adopting a mandatory COVID vaccination policy:

1. do they operate in an industry that involves physical interaction with the public or are they providing an essential service;
2. what are the employer’s workplace health and safety obligations and common law duties of care;
3. does a public health order apply, or other government policy guides them towards directing their employees to vaccinate;
4. if there is a case of COVID at work would the ramifications seriously jeapodize the viability of the business because it needed to shut down for a period of time;
5. are there any relevant provisions in applicable employment contracts, modern awards or enterprise agreements that allow the introduction of a mandatory policy;
6. can employees be safely deployed to perform duties that require minimal interaction with others (for example, working from home);
7. has an appropriate degree of consultation with the workforce taken place before adopting a mandatory policy; and
8. is vaccination an inherent requirement of the position of their employees?

If an employer can satisfy itself that it meets one or more of these criteria, we are relatively confident that it can adopt and enforce a mandatory vaccination policy without facing opposition from the judiciary, provided that where valid medical exemptions apply, appropriate accommodation is genuinely explored and employers properly consult with employees who object to the policy to understand their concerns on a case-by-case basis.

Otherwise, we continue to advise our clients that the adoption of a COVID vaccination policy that, at least, strongly encourages and incentivises vaccination (for example, by providing special paid leave for receiving a vaccination and reasonable time to recover from any ill effects post vaccination) should be considered at a minimum by all Australian employers.

We have created customised COVID vaccination policies for several of our clients and are ready and able to assist any employers who wish to roll out their own bespoke policy. If any further information in relation to any aspect of this alert is required, please do not hesitate to contact us. Otherwise, we are available and ready to assist should you require any other employment law advice or support.