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.
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:
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.
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:
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:
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.
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.
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.
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:
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.
If you found this insight article useful and you would like to subscribe to Gadens’ updates, click here.
For details of all our COVID-19 tips and updates, visit the Gadens COVID-19 Hub.
Brett Feltham, Partner
Sera Park, Associate