No jab, no job?!

By Jess Toop in Legal Updates Posted September 16, 2021

A health professional drawing a COVID-19 vaccine into a syringe

The Delta outbreak of COVID-19 has thrown yet another curve ball in this pandemic. Businesses are now grappling with increased transmissibility of the virus, the continued threat of workplace outbreaks, and the economic toll of lockdowns. It is little wonder that the COVID-19 vaccination roll-out in Australia – which was eagerly awaited but slow to gain momentum – has left many businesses asking the question – can I tell my staff to get vaccinated? And if yes – what can I do if they refuse to get vaccinated?

Unfortunately, the answer is it depends. As with so many facets of life right now, the legal framework is complex and constantly changing. To put it simply – navigating an employer’s rights and responsibilities in relation to mandatory vaccinations can be a minefield.

This blog considers some of the key legal issues surrounding a ‘no jab no work’ policy.

1. Can I require my employees to be vaccinated?

The Federal Government has been very clear that it will not be making vaccinations mandatory, however, states and territories have issued public health orders requiring mandatory vaccinations for some industries and workers.

If there is a state, territory or federal order (or direction) requiring mandatory vaccinations in your industry, then the answer is an unequivocal yes – you can (and must) require that your employees be vaccinated, provided they are covered by scope of the order.

Industries in which state and territory public health orders have been made include aged care, border force and quarantine workers. In NSW, public health orders have been have also been made for health workers, schools and preschools and for construction workers who come from certain local government areas of concern.

2. What is a ‘lawful and reasonable’ direction?

In the absence of government orders, employers can require their employees be vaccinated if they can demonstrate that the direction is ‘lawful and reasonable’. This requires a ‘role-by-role’ assessment and depends on the specific factual circumstances of your organisation’s operations and each individual employee. It includes, but is not limited to, consideration of health and safety obligations (including the level of risk of transmission and alternative risk mitigants available), the inherent requirements of each role, as well as obligations and responsibilities under anti-discrimination laws.

Helpfully, the Fair Work Ombudsman (Ombudsman) has issued updated guidelines for employers to use when considering what is a ‘lawful and reasonable direction’.  The guidelines set out a range of factors that may be relevant when determining whether a direction to get vaccinated is reasonable, including the nature of the role (whether it is public facing and if social distancing measures can be implemented), and the extent of community transmission of COVID-19, to name a couple.

The Ombudsman’s guidelines divide work into four broad categories to assist with the question of whether a vaccination requirement is reasonable. The FWO has said that a direction to employees performing Tier 1 (roles involving interaction with people with increased risk of having COVID-19) or Tier 2 (roles involving close contact with people vulnerable to the health effects of COVID-19) work is more likely to be reasonable given the increased risk of employees becoming infected with COVID-19 in the case of Tier 1, or spreading coronavirus to people with vulnerable health in the case of Tier 2.

Unfortunately, for most businesses, their employees are likely to fall into the Tier 3 category of work – which from a legal perspective is the most difficult to navigate. Tier 3 workers have or are likely to have interaction with other employees and members of the public, for example customers. For Tier 3 workers, employers will also need to consider the rates of community transmission in the workplace’s locale, and whether the business needs to stay open to provide essential goods and services, as part of its assessment as to whether a direction to get vaccinated is reasonable.

Finally, Tier 4 roles are those with minimal face-to-face interaction, such as those who work from home. Given the limited risk of transmission, the Ombudsman’s guidance is that requiring vaccination is unlikely to be reasonable for this category of worker.

3. Other considerations

If an employee refuses to comply with a direction to get vaccinated, an employer will need to determine whether they have reasonable grounds for refusal (for example, whether a medical exemption applies), or if an employee refusing on other grounds (for example, religious, political), and this calls into play workplace anti-discrimination laws.

Another important consideration is whether your organisation needs to introduce mandatory vaccinations to comply with its work, health and safety duties. Safe Work Australia has said that it is unlikely that a requirement to be vaccinated will be reasonably practicable, however, again this will depend on the ‘specific circumstances’ that exist when employers are undertaking their risk assessment. Safe Work Australia has some useful resources for employers on this issue and keeping workplaces safe from COVID.

Your organisation must also be mindful when collecting, releasing or disclosing the vaccination status or health information about its employees, as this could fall foul of privacy laws, including state-based health records legislation.

4. Blanket ‘No Jab No Work’ Policies

Implementing ‘blanket’ (i.e., organisation-wide) policies mandating vaccinations can be problematic. As explained above, issuing a direction requires an assessment of each role. Outside of industries where a government health order mandates vaccination across the board, blanket vaccination policies must be premised on the basis that the direction to be vaccinated is reasonable for all employees, which is unlikely to be the case.

Food processor SPC Ardmona was the first Australian business to mandate vaccinations for all onsite workers and visitors. It has pushed ahead with this measure, despite union criticism and the risk of potential legal claims from employees who refuse to get vaccinated (without a medical reason).

Since then, a rapidly growing number of organisations have announced vaccine mandates (that apply to their workforces to various extents), including Qantas, Virgin Australia, Telstra, Racing Victoria, St Vincent’s Hospital and Xavier College. And by the time you are reading this article, many other employers are likely to have followed suit.

In face of the COVID-19 pandemic, there is a tension between legal and practical considerations with respect to mandatory vaccinations:

  • From a legal perspective, it is prudent to determine vaccination requirements on a role-by-role basis, and also to take consideration of any medical exemptions / other medical conditions (physical or mental) that may affect employee willingness to get vaccinated.
  • But on a practical level, many organisations are pushing ahead with a vaccination policy that involves either a blanket approach or has wide application, presumably given the current Delta strain outbreaks and case numbers in New South Wales, Victoria and the ACT – and this is giving other organisations the confidence to follow their lead.

5. What are the alternatives?

There are other ways to incentivise staff to get vaccinated, such as offering paid time off to get vaccinated, and offering incentives to staff if they get vaccinated – although it’s important to ensure any incentive schemes comply with the TGA’s guidelines for advertising and promoting vaccinations.

There are also other practical measures employers can undertake, for example, conducting staff surveys (for larger organisations) to understand how employees feel about vaccinations, consulting with employees, holding education sessions, and discussing employees’ individual concerns.

The Federal Health Minister has now announced that businesses can apply to provide on-site vaccinations for their workers – this provides another option for encouraging staff to get vaccinated. We anticipate it will be particularly helpful in lifting workforce vaccination rates where complacency, rather than vaccine hesitancy, is the reason behind staff remaining unvaccinated.

Wrap-up

While the issue of mandatory vaccinations may have (some) employment lawyers in raptures, for businesses it is a complex and sensitive issue. The advice and situation are changing almost daily, and we recommend that you seek advice at the earliest opportunity.

This blog was brought to you by Georgia Rutecki and Jess Toop of Toop Workplace Law.

This is general information only, is current as at 16 September 202 and may not be applicable to your organisation or situation. It is not a substitute for legal advice and it is important that you obtain specific advice. 

Liability limited by a scheme approved under Professional Standards Legislation.

© 2021 Toop Workplace Law Pty Ltd