COVID-19 | Mandatory COVID-19 vaccinations in the workplace – is it lawful?

While there have been many issues which employers have had to face during the COVID-19 pandemic, of late the issue which has received the most media coverage, and which has probably caused the most concern for employers, is the issue of whether an employer can mandate that its employees must receive COVID-19 vaccinations.

We have set out some guidance below, based in part on the revised guidance released by the Fair Work Ombudsman overnight.

Are there are some industries where COVID-19 vaccinations have been mandated?

There are some specific industries where there are mandatory COVID-19 vaccination requirements in place (in the form of public health orders or directions) or there are prohibitions on non-vaccinated employees from working.

State/Territory specific restrictions

The current restrictions include:

• New South Wales – unvaccinated people working in specific types of jobs in the NSW Airport and Quarantine Vaccination Program (quarantine workers, transportation workers and airport workers) are prevented from entering the workplace or providing services. In addition, construction workers residing in declared local government areas where tighter restrictions are in place, may also be required to be vaccinated (to some degree) before entering a construction site;
• Queensland – a public health direction has been issued mandating vaccinations for health service employees, Queensland Ambulance employees, hospital and health service contractors, and workers in quarantine facilities;
• Western Australia – public health directions have been issued preventing quarantine centre workers from entering or remaining at a quarantine centre if they have not been vaccinated. These directions will also affect those working in the Western Australian hotel quarantine system, including security personnel and hotel staff; and
• South Australia – workers in the South Australian quarantine system, including in airports, medi-hotels, health-care settings and those who perform the work of transporting persons arriving from overseas and restricted zones, must be vaccinated.

Public health orders and directions are being constantly issued and updated. Employers need to ensure that they stay up-to-date with the latest information from relevant State/Territory governments and should expect that this list will only increase.

Aged care sector

In response to the spread of the Delta strain of COVID-19, and infections identified in aged care facilities in both aged care workers and residents, the National Cabinet announced on 28 June 2021 that vaccinations will be mandated for all residential aged care workers. All residential aged care workers are required to have received at a minimum a first vaccination dose by 17 September 2021, as a condition of working in a residential aged care facility. This requirement applies to all people working at a facility, including volunteers, those who are responsible for resident care, those who provide support services for residents, and including maintenance and administration workers. To put it another way, this includes nursing and personal care staff, allied health professionals, kitchen, cleaning, laundry, garden and office staff.

Outside of those mandated industries, can an employer require its employees to be vaccinated?

The Federal government has consistently made clear, including through information released by the Fair Work Ombudsman and Safe Work Australia, that the government’s policy is that receiving a COVID-19 vaccination is voluntary.

Factors to consider if reasonable

Outside of those specific industries and workplaces where COVID-19 vaccinations have been clearly mandated, the basic position remains that an employer can only direct its employees to be vaccinated if such a direction is both lawful and reasonable. Whether or not such a direction will be reasonable will be very fact specific and requires a balancing of considerations such as:

• what work does an employee perform, how is that work performed, and is there potential for the employee to socially distance and/or wear a mask?;
• does the workplace involve employees working in close proximity to each other, in confined spaces, and/or near to customers and the public?;
• is the employee required to interact with other people who may be at an elevated risk of infection or to have close contact with other people who may be vulnerable to the health impacts of COVID-19?;
• is the employer’s business an essential service that needs to continue to operate for the public good?;
• the obligation on employers to ensure the health, safety and welfare of their employees and others at their workplace, to the extent reasonably practicable to do so;
• to what extent, if any, there is community transmission in the immediate or surrounding location where the employee works, and as a result the risk of transmission between employees, to customers or the wider community is higher;
• the availability of vaccinations for all employees, noting that employees of different ages have had access to vaccinations from different dates, that those dates have also differed between locations, and that both supply and demand-side issues will likely have prevented or delayed some employees from receiving vaccinations;
• the effectiveness of those vaccines, both in terms of preventing transmission and also serious illness and death, including considering their effectiveness as new strains of COVID-19 may emerge; and
• each employee’s individual circumstances, including whether an employee may have a legitimate excuse for not becoming vaccinated, for example a medical contraindication supported by evidence.

New four tier guidance

To assist employers in making this very difficult assessment, the Fair Work Ombudsman has released a four tier system as a general guide:

• Tier 1 work – this is where employees are required as part of their duties to interact with people with an increased risk of being infected with COVID-19. This would include employees who work in the areas of hotel quarantine and border control. As referred to above, in some circumstances these workers are already required to be vaccinated in order to work or enter premises;
• Tier 2 work – this is where employees are required to have close contact with people who are particularly vulnerable to the health impacts of COVID-19. This would include employees working in health care or aged care industries, and may potentially extend to those working in the areas of childcare and disability services;
• Tier 3 work – this covers those employees where in the normal course of employment there are interactions or there are likely to be interactions between those employees and other employees, customers, or members of the general public. This may include, for example, employees working in stores which provide goods and services; and
• Tier 4 work – this is where employees have minimal face-to-face interaction as part of their normal employment duties and would include those employees who work from home.

Based on a balancing of the relevant considerations, clearly a direction requiring employees to be vaccinated is more likely to be reasonable for those employees in Tier 1 or Tier 2, than for other employees. At its most basic level, this is because those employees are generally at the greatest risk of contracting COVID-19 and then transmitting COVID-19 to vulnerable persons.

For those employees within Tier 3, where an employee is working in a workplace which needs to remain open despite any lockdown and where there is current community transmission, a direction to be vaccinated is more likely to be reasonable. This is clearly the most difficult category of employees to assess and to apply any reasonableness element to.

Any direction to employees in Tier 4 that they must be vaccinated is unlikely to be reasonable, taking into account the lesser risk of transmission for those employees.

The above position seems to be broadly consistent with the position adopted by the Fair Work Commission in recent cases involving mandatory flu vaccinations, such as Barber v Goodstart Learning (see our previous article), Kimber v Sapphire Coast Community Aged Care and Glover v Ozcare. While each of those cases involved flu vaccinations only, and the Fair Work Commission has been at pains to make clear that these decisions should not be extrapolated to apply to COVID-19 vaccines, the trend that has emerged is that requiring an employee to receive a flu vaccination in higher risk industries, and being able to take action against an employee who refuses to do so (without sufficient medical evidence) is likely to be considered to be a lawful and reasonable direction that can form a valid basis for terminating employment.

Most employers will employ workers who fall into more than one of the above tiers. Practically, this may mean that an employer cannot adopt a ‘one size fits all’ approach, and requiring some employees to be vaccinated may be reasonable while for others it may not be.

Lastly, if an employer is considering implementing a vaccination policy mandating that some or all of its employees must be vaccinated, then it should carefully consider consulting with their employees (and any relevant trade unions) prior to implementation. Matters that consultation should be undertaken in relation to include what grounds may be expressly recognised for potential refusal, what process should be adopted where an employee indicates that they are reluctant or refuse to become vaccinated, and so on. Clearly these can be difficult issues to navigate and expert advice and assistance should be obtained.

What happens if an employee refuses to be vaccinated?

There may be numerous reasons why an employee refuses to receive a vaccination, including on the basis of medical, religious and/or political grounds.

In the first instance, an employer should ask an employee for their reason for refusal and be ready to discuss that reason with them. Normally if it is reasonable for the employer to mandate the vaccination in all of the circumstances, then it will also be reasonable to require the employee to provide their reason and any evidence which supports that reason.

If the employee maintains their refusal, an employer will need to carefully consider the individual employee’s circumstances and weigh that up against the role the employee performs, the type of workplace they work in, as well as considering whether there are any specific health law / public health directions in place. This may include considering whether there are any alternative work arrangements which could be agreed to with that employee, including for a limited period, such as changes to their duties, reducing contact with other employees and customers, and/or potentially working from home arrangements.

It will be very difficult for many employers to determine with any certainty whether it is reasonable to mandate vaccinations for any particular employee, whether an employee’s refusal to be vaccinated is reasonable given their stated reason and evidence provided, and in light of those matters whether they can lawfully terminate an employee who refuses vaccination without a valid reason. Expert advice should be obtained in the first instance.

Can an employee refuse to attend the workplace because another employee has refused to be vaccinated?

Generally an employer will be able to direct an employee to attend the workplace in those circumstances. This is because, other than for those industries and occupations where there is a clearly mandated position or where it would be clearly reasonable to mandate vaccinations (such as Tiers 1 or 2), whether an employee is vaccinated remains a personal choice. There may also be legitimate reasons as to why any employee may not have been vaccinated (as discussed above).

In most circumstances it will be lawful and reasonable to direct an employee to attend the workplace, unless that employee is able to provide a legitimate reason and supporting evidence as to why that is not the case.

Can an employer nonetheless encourage its employees to become vaccinated?

Employers are allowed to encourage their employees to get vaccinated, particularly from a health and safety perspective, and many employers have been taking this position for some time. This encouragement can take many forms, but it should at least involve:

• giving employees approved information about vaccinations and directing them to links or access to government and recognised health orders and information; and
• providing employees with an opportunity to receive vaccinations including during work hours (when appointments may be available) – this could include providing paid time off, flexibility around start and finish times (to facilitate appointments), and making it clear that full-time and part-time employees can use any accrued sick leave where they become ill following a vaccination.

Some employers will wish to consider offering preferential treatment to employees who become vaccinated, including by providing a bonus or gift. There could be discrimination risks involved should an employer give preferential treatment to those employees who are vaccinated, given that employees may have various legitimate reasons for not being vaccinated. Employers should proceed with caution when considering preferential treatment in those circumstances.

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Authored by:

Brett Feltham, Partner
Sera Park, Associate