Can we require staff to have the COVID-19 vaccine?

By Courtney Ford in Legal Updates Posted January 20, 2021

With Australia’s largest vaccination program ever kicking off next month, many businesses are looking forward to moving further towards ‘normal’ operations. And central to this will be making sure that as many staff as possible get the COVID-19 vaccine.

But can Australian businesses require their staff to be to be vaccinated against COVID-19? And even if they can, should they? What other strategies can your business use to encourage vaccination, and best protect your workforce and business from the ongoing risk of COVID-19? Our blog takes a look at some of these novel questions.

1. Can your business make the COVID-19 vaccination mandatory?

If your workers deal with vulnerable populations, or in workplaces where social distancing is just not possible (‘high risk workplace’), it is (at least) arguable that you can consider mandatory COVID-19 vaccine to be an ‘inherent requirement’ of the roles of relevant employees.

Put simply, inherent requirements are the essential or fundamental requirements of an employee’s role – and an inability to meet them might justify not recruiting a candidate or dismissing an employee. It is an inherent requirement of every role that the employee is able to work safely (i.e. risks to the employee and to others are mitigated so far as is reasonably practicable) and comply with work health and safety laws.

For high risk workplaces, elimination of the COVID-19 transmission risk, so far as is possible, may be the only way that roles can be safely performed (and thus the only way that one of the inherent requirement of their roles can be fulfilled). High risk workplaces would likely include:

  • aged care facilities, hospitals, medical and other health care facilities, as well as sites at which in-home care is provided to the vulnerable (e.g. home nursing, aged care support and disability support work); and
  • schools, childcare centres, and other work locations where social distancing or remote working are simply not possible.

In our view, there is scope for many employers to make the COVID-19 vaccine mandatory for their high risk workplaces, on the basis that the vaccine is the most appropriate control measure to eliminate the risk of transmission. But this step should only be taken following specific legal advice and the accompanied by an appropriate process for dealing with objections.

Businesses should anticipate that some workers may have personal circumstances or conditions that mean they have legitimate objections to getting the COVID-19 vaccine. As such, businesses considering making the COVID-19 vaccine mandatory at their high risk workplaces will need to be ready to manage and assess objections to vaccination, or risk exposure to potential claims of discrimination, adverse action, or breach of contract (discussed below).

Depending on the circumstances, options for dealing with workers who refuse to get vaccinated might include:

  • changing the individual’s duties or work location, or making other reasonable adjustments for them;
  • implementing a disciplinary process; or
  • in some circumstances, dismissal.

2. Legitimate objections

Workers may object to getting vaccinated against COVID-19 for a genuine reason, including because of health conditions or religious beliefs. Businesses with high risk workplaces who implement a mandatory COVID-19 vaccination program therefore need to consider:

  • how worker objections to the vaccine will be managed confidentially and efficiently;
  • what evidence can be obtained to substantiate an employee’s objection (e.g. a detailed medical certificate, evidence from a recognised religious body?) so that the business can determine whether it is a legitimate objection; and
  • if a worker has a legitimate objection to the vaccine, what process will be used to determine whether reasonable adjustments or alternative arrangements can and will be made in respect of that worker?

While any mandatory COVID-19 vaccination program will entail the risk of discrimination, adverse action, or breach of contract claims by its workers, businesses can significantly mitigate this risk by implementing a transparent and well-managed process for dealing with any worker objections and obtaining legal advice on specific cases.

3. What about businesses who do not have high risk workplaces?

Businesses who don’t operate high risk workplaces will have a much harder time persuading a court or tribunal that COVID-19 vaccination is an inherent requirement of an employee’s position. This is because these businesses can put other measures in place to enable their workforce to safely perform their roles – for example, social distancing and hygiene measures, working from home, operational changes (staggered working days or times), and regular cleaning of the workplace.

But even for employers that do not require staff to get the COVID-19 jab, given that Australian work health and safety laws oblige employers to minimise health and safety risks to people in their place of work, we recommend strongly encouraging employees to get vaccinated to protect themselves and others – as is commonly done with respect to annual flu vaccinations – as well as implementing further strategies appropriate to their workplace (see below).

4. Risk mitigation for all businesses

Once a COVID-19 vaccine becomes widely available, there are various strategies that can be adopted to mitigate the risks of COVID-19 at their workplaces and for their business (irrespective of whether a mandatory vaccination program is put in place). For example:

  • putting in place a policy requiring unvaccinated employees to work from home or take sick leave if they have any symptoms associated with COVID-19, pending a negative COVID-19 test;
  • if necessary, updating employment contracts, policies, and labour hire arrangements;
    transparent and consistent communication about the business’ approach to the vaccine and management of risks relating to COVID-19;
  • appropriate training for managers and human resources about the business’ approach to the vaccine;
  • offering the COVID-19 vaccine free of charge;
  • offering paid time off work to get the vaccine.

It will also be important for businesses to keep abreast of current health advice and workplace health and safety requirements, and ensure their COVIDSafe plans are regularly reviewed and updated.

5. Key take outs

With COVID-19 vaccinations due to commence in Australia shortly and (even!) Victorian office workers being permitted to return to onsite work in increasing numbers, every business needs to turn its mind to the approach it will take to COVID-19 vaccinations, as well as protocols for staff who exhibit COVID-19 symptoms, whether or not they are vaccinated.

 

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© 2021 Toop Workplace Law Pty Ltd