This article was written by Emily Cossgrove, Holly Gretton and Darcy Harwood.
As the first roll out of the COVID-19 vaccine in Australia draws closer, uncertainty remains as to whether employers will be able to mandate that their employees vaccinate.
This article unpacks how employers should approach the issue of the COVID-19 vaccine in the workplace, including our take on whether employers can direct an employee to get the vaccination and the potential pandora's box of considerations that employers should be alive to if an employee refuses to do so.
At this stage, it seems to us that an employer's ability to require an employee to get the COVID-19 jab will turn on both the industry they operate in and the role being performed by a particular employee. In the case of those in high-risk industries, a requirement for employees to be vaccinated is likely to be valid.
Can an employer require an employee to get vaccinated?
A lawful and reasonable direction
An employer can issue a direction to employees to get vaccinated so long as the direction is lawful and reasonable.
A direction to get vaccinated will be lawful if it falls within the scope of the employment agreement and involves no illegality. Whether it is reasonable is ultimately a question of fact and balance, with reference again to the scope of the employment agreement.
Unsurprisingly, whether a lawful and reasonable direction could be used for the purposes of compelling employees to get vaccinated for COVID-19 has not been tested directly in court and is a complex issue.
In the recent case of Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083, it was found to be at least 'equally arguable' that a policy issued by the child-care business requiring mandatory immunisation was lawful and reasonable in the context of its operations which principally involved the care of children, given such a policy was necessary to ensure that it met its duty of care to those around.
Additionally, the case of Glover v Ozcare [2021] FWC 231 is one to keep watching as it is likely to provide further analogous guidance for employers on issuing reasonable directions to vaccinate. In Glover, the Commission will determine whether an employee, being an in-home care assistant, was unfairly dismissed on the basis that she refused to receive the flu vaccine due to allergies.
Interestingly, in a preliminary hearing for the matter, Commissioner Hunt made the following observations:
In my view, each circumstance of the person's role is important to consider, and the workplace in which they work in determining whether an employer's decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction. Refusal of such may result in termination of employment, regardless of the employee's reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector.
It is not inconceivable that come November 2021, employers of men engaged to play the role of Santa Clause in shopping centres, having photos taken around young children, may be required by their employer to be vaccinated at least against influenza, and if a vaccination for COVID-19 is available, that too. The employer in those scenarios, where they are not mandated to provide social distancing, may decide at their election that vaccinations of their employees are now an inherent requirement of the job. It may be that a court or tribunal is tasked with determining whether the employer's direction is lawful and reasonable, however in the court of public opinion, it may not be an unreasonable requirement. It may, in fact, be an expectation of a large proportion of the community.
A Court or Commission may well find it lawful and reasonable for employers to direct employees working in high risk industries (quarantine workers, frontline healthcare etc) to get vaccinated if they don't choose to do so voluntarily. This is because these are the workers who are most likely to be exposed to the virus and of greatest risk to themselves and others.
Conversely, it may be difficult for an employer to justify clerical and office employees must be vaccinated. Then there are industries where the argument may get even more complicated. For example, a mine site employer whose workers reside on site for the duration of their swing may be able to argue that it is lawful and reasonable to issue a direction for immunisation given the highly transmissible nature of COVID-19 and the close living quarters of the mine site. A blanket approach across the entirety of the workforce may not be appropriate.
Whether a direction to be vaccinated is lawful and reasonable will vary depending on the circumstances, particularly arising from the health risks arising from the activities the employer engages in and the employee's role.
Relevant factors that may impact whether a direction is lawful and reasonable include:
- relevant workplace health and safety obligations;
- the employer's common law duties of care;
- whether the direction constitutes discrimination of the sort prohibited by Australia's anti-discrimination regime;
- human rights legislation (depending on the jurisdiction of the employer);
- provisions in the employment contract, policies, modern award or enterprise agreement;
- any relevant consultation obligations;
- the availability of reasonable exemptions to the direction, and the availability of effective alternatives to vaccination (such as the use of personal protective equipment); and
- whether the employee can perform the inherent requirements of their position without being vaccinated.
An inherent requirement of an employee's job
As touched on by Commissioner Hunt in Glover, an employer may require an employee to get vaccinated on the basis that it is an inherent requirement of the job. Determining what is an inherent requirement of the job involves an objective test as to what is required for the substantive position the employee performs – it is the essential elements of the job.
There may be a compelling argument, for example, that vaccination against highly transmissible viruses such as COVID-19 is inherent to the role of a health or aged care worker, particularly given the significant potential consequences of transmission in that work environment and the requirement on the employer's to provide a safe place of work.
Health and safety reasons
As above, in high risk industries, employers will be able to argue it is necessary to require employees to get the COVID-19 vaccine for health and safety reasons. That is, the COVID-19 vaccine may be necessary for an employer to discharge its duty to take care to ensure, so far as is reasonably practicable, the safety and health of its workers and others at the workplace. This includes by providing and maintaining a safe working environment and adequate facilities for workers to carry out their work in a safe manner.
In many industries, however, existing measures such as social distancing, wearing masks and working from home arrangements may be sufficient to ensure an employer complies with their health and safety obligations, particularly as these measures are already proving largely successful in stopping the spread of the virus in Australia.
As flagged by Christian Porter, with work health and safety ultimately falling outside the remit of the Federal Government, it seems only a matter of time before the states and territories start issuing guidance or indeed enacting legislation or issuing public health orders in relation to the approach to be taken to vaccination by employers.
Victoria has already enacted the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020 (Vic) which requires health care workers employed or engaged in public and private hospitals and ambulance services with direct patient contact (including orderlies, cleaners and staff) to be vaccinated yearly against "specified diseases", including the flu, whooping cough, measles, chicken pox and hepatitis B. There are also public health orders in most states and territories requiring workers in residential aged care to be vaccinated against influenza, except where the employee has a medical reason not to.
Helpfully, any mandated vaccine regime would provide employers with a clear source of authority and guidance for requiring employees to get vaccinated for COVID-19 without the need to rely on this issue developing and being dealt with through the common law.
What happens if an employee refuses to get vaccinated?
Even if employers find a valid basis for requiring employees to vaccinate against the COVID-19 virus the question then becomes – what do employers do with employees who refuse to vaccinate?
There are a number of short term actions which may be taken by employers in these circumstances such as directing the employee to not attend work for a short period of time, requesting that they continue to perform their work from home or another location or redeploying them to another part of the business where immunisation is not considered essential.
Alternatively, an employer may consider the only option to minimise further disruption in the workplace is to remove the employee from the workplace. Valid reasons for dismissing an employee in these circumstances may include that they refused to follow a lawful and reasonable direction to get vaccinated, they are unable to perform the inherent requirements of their role without being immunised or are posing a threat to the work health and safety of those around them by remaining unvaccinated.
Employers should genuinely consider the basis of an employee's objection, ensure consistency in how employees who refuse to be vaccinated are treated and be alert to potential claims that the employee may raise if they are treated adversely because of their refusal to be vaccinated or ultimately dismissed.
Other issues for employers to consider
Discrimination & other potential claims
What if the employee's refusal to be vaccinated is based on their religious or ethical beliefs, a general unease with the vaccine from a medical perspective or are pregnant or have underlying health conditions which means they cannot get vaccinated? If an employer was to take action against an employee for refusing to be vaccinated in these circumstances, there is a risk of a claim of discrimination.
Workplace discrimination is unlawful and occurs when an employer takes adverse action against a person because of a protected attribute, including age, physical disability, pregnancy, religion or political opinion. Accordingly, any requirement on behalf of an employer for an employee to be vaccinated should include appropriate carve outs, such as for those employees with medical conditions or that are pregnant.
Importantly though, if an employer can establish that being vaccinated is an inherent requirement of the job and any adjustments allowing the employee to meet the inherent requirements of the job impose an unjustifiable hardship on the employer, this may provide a defence to any claim of unlawful discrimination, unlawful adverse action or unfair dismissal.
Employees who refuse to vaccinate and are subsequently terminated may also raise an unfair dismissal claim, arguing their termination was harsh, unjust or unreasonable (as we are seeing play out in Glover). Similarly, an employee may argue that they have been adversely treated in the workplace (i.e. didn't receive work, promotions or were dismissed) for refusing to vaccinate, or for reasons including a refusal to vaccinate. Employers will then have the onus of proving they had an objectively justifiable reason for taking the alleged action.
While highly unlikely given the number of hoops which would first need to be jumped through, employers may be faced with workers' compensation claims from employees who get the vaccine as a requirement of their role but subsequently experience adverse effects.
Privacy issues
How can employers be sure that their employees are vaccinated? Can employers require proof or evidence of vaccination? How do employers then deal with this information?
High risk industry employers may be able to lawfully and reasonably request employees provide proof of their vaccination in circumstances where there is a defensible basis for requiring the employee to be vaccinated in the first place. This proof may be in the form of a doctor's certificate, similar to medical evidence provided for sick leave, or alternatively, employees may be required to sign statutory declarations that they have been vaccinated and are therefore fit to work.
Outside of high-risk industries, where there is not a genuine basis for requiring an employee to be vaccinated, employers will likely have to rely on employees voluntarily disclosing and providing proof that they have been vaccinated or otherwise take their word.
While medical records obtained to establish fitness for work are likely to be exempt from the Australian Privacy Principles as employee records, employers should request, compile and maintain any information provided by employees in relation to their immunisations, whether it be in the form of medical certificates or statutory declarations, in a responsible and confidential matter.
What should employers do now?
There is no doubt this will be an evolving situation and area of law, particularly once the vaccine rollout commences. We expect that there will soon be a number of cases considering the ability for an employer to require an employee to be vaccinated. Further, we anticipate guidance will soon emanate from unions, industry groups, government and work health and safety regulators as to how to tackle the vaccine in the workplace.
In the meantime, employers should:
- monitor and stay attuned to community expectations around the vaccine rollout;
- start having an internal discussion within the business leadership group about these issues, including considering the particular workplaces you are operating in and determining whether the vaccination of your employees is necessary for compliance with WHS duties or the inherent requirements of the job or whether a lawful and reasonable direction can be issued requiring employees to be vaccinated;
- review employment contracts, policies and position descriptions to ensure that any requirements to be vaccinated are expressly stated (including specifying the COVID-19 vaccine);
- consider implementing a policy or updating other associated policies which indicate the expectation that employees will be appropriately vaccinated;
- communicate with your workforce about the general importance of getting vaccinated against the COVID-19 virus, in accordance with the Federal Government's stance;
- consult with your workforce about the issue; and
- keep informed of updates in this space.
