05 Aug COVID-19 VACCINATIONS – CAN YOU MANDATE THAT YOUR EMPLOYEES HAVE THE COVID-19 VACCINATION?

For a while now, employers have been trying to manage the health and safety risks associated with the spread of COVID-19.  Now that a vaccine is available, employers (particularly those in high-risk industries) have started to consider whether they can require their employees to get the COVID-19 vaccine.  

CURRENT GUIDANCE

The Fair Work Ombudsman’s current guidance is that in the current circumstances, the “overwhelming majority” of employers should assume that they cannot require their employees to be vaccinated against COVID-19.  To work out if your business can or cannot require employees to be vaccinated, there are a number of relevant factors to consider.  These include:

• whether a specific law (for example, a state or territory public health law) requires your employees to be vaccinated;

• whether you have an enterprise agreement, other registered agreement or employment contract which includes a provision about requiring vaccinations; and

• if there is no law, agreement or employment contract which applies that requires employees to be vaccinated, then you need to consider whether it would be lawful and reasonable for you to give your employees a direction to be vaccinated.  This is assessed on a case-by-case basis and you may develop a policy about this.

SPECIFIC LAW

State and territory governments may make public health orders requiring the vaccination of workers which employers must comply with.  This normally happens in high-risk industries such as the health care industry.

AGREEMENTS OR CONTRACTS REQUIRING VACCINATIONS

Some enterprise agreements, other registered agreements or employment contracts, may contain terms relating to vaccinations or specifically COVID-19 vaccinations.  You need to check to see if your agreements or contracts contain terms like this and consider if the term applies to COVID-19 vaccinations.  For example, a term only relating to flu vaccinations would not apply.  Even if a term applies to COVID-19, you would need to consider whether the term complies with anti-discrimination laws, otherwise, it will not be enforceable.

DISCRIMINATION AND THE INHERENT REQUIREMENTS OF THE JOB

Anti-discrimination laws, generally prohibit discrimination against employees in the workplace based on protected characteristics.  Protected characteristics that are likely to be relevant in considering whether to require vaccination include for example, disability, pregnancy and religious beliefs.  

In some cases, an exception may arise if the discriminatory action is taken because of the inherent requirements of the particular position concerned.  In the context of COVID-19, this may apply when for example, the inherent requirements of a role require physical interaction in close proximity and in an enclosed environment with others.  For example, it may be argued that it is an inherent requirement of employment that employees be vaccinated against COVID-19 where they work in such circumstances, so they do not risk infecting others.

LAWFUL AND REASONABLE DIRECTIONS

Employers can direct their employees to be vaccinated if the direction is lawful and reasonable.  This needs to be assessed on a case by case basis and there are a range of factors that may be relevant when determining whether a direction is reasonable.  This includes whether the direction is a “reasonably practicable measure” to eliminate or minimise risks to work health and safety under work health and safety (“WHS”) laws.

WORK HEALTH AND SAFETY LAWS AND GUIDELINES

WHS laws are state and territory specific, however, the model laws provide general guidance.  

Section 19 of the model WHS laws provides that an employer must ensure the health and safety of its employees as far as is reasonably practicable.  Section 17 of the model WHS laws places a duty on a person to eliminate risks to health and safety and if the risks cannot be eliminated, then the risks need to be minimised so far as is “reasonably practicable”.  Section 18 of the model WHS laws defines what is “reasonably practicable” in ensuring health and safety, as that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including the likelihood of the hazard or the risk concerned occurring and the availability and suitability of ways to eliminate or minimise the risk. 

Safe Work Australia provides guidance in line with the WHS laws that “Under WHS laws, you have a duty to eliminate or if not possible, minimise, so far as is reasonably practicable, the risk of exposure to COVID-19 in the workplace” and “must do all that is reasonably practicable to minimise this risk and vaccination should be considered as one way to do so in the context of a range of COVID-19 control measures”.

The FWO has said that some circumstances in which a direction may be more likely to be reasonable include where employees interact with people with a higher risk of being infected with COVID-19 (e.g. hotel quarantine workers or border control) or employees have close contact with people who are most vulnerable to COVID-19 (e.g. health care or aged care employees).

You should consider matters such as:

• are vaccinations required because of a public health order?

• will your workers be exposed to a higher risk of infection as part of their work? and

• do your workers work with people who would be vulnerable if they contract COVID-19?

If you consider that a vaccination requirement is lawful and reasonable, then a policy and procedure should be drafted regarding the requirement.  You will need a policy in place to ensure it is clear to employees what their obligations are and what your obligations are in regard to COVID-19 vaccinations.  The policy should also include a mechanism for employees to raise any issues they have with being required to have the vaccine for your consideration, for example if they have medical concerns.

Under WHS laws, employers must consult with workers about certain health and safety matters, including plans to implement policies on WHS matters.  This includes any plan to introduce a new policy about COVID-19 vaccinations or changes to an existing vaccination policy.

Consultation requirements include that relevant WHS information is shared with workers and the views of workers are taken into account.  These requirements are set out in section 48 of the Work Health and Safety Act 2011 (Qld) and similar provisions are contained in other jurisdictions.  Keep in mind that if workers are represented by a health and safety representative, the law requires that you must also involve their health and safety representative in the consultation process.

WorkSafe Australia has published some helpful specific guidance regarding the requirements for consultation on COVID-19 matters such as assessing the risk and deciding on control measures.

MODERN AWARD OR AGREEMENT CONSULTATION REQUIREMENTS

Most workplaces are covered by either a Modern Award or enterprise agreement.  All Modern Awards and enterprise agreements must include a consultation clause requiring employers to consult when they intend to implement significant workplace changes.  Some registered agreements, employment contracts or existing workplace policies may also require employers to consult.

Before introducing or changing a workplace policy about vaccinations, you need to review any applicable Modern Award, enterprise agreement, employment contract or existing workplace policy to determine:

• whether you need to consult under that document (this would be in addition to needing to consult under the WHS laws discussed above);

• who you need to consult with (including any employee representatives or unions); and

• how you need to consult about the proposed change.

COSTS OF VACCINATIONS

The question also arises as to who should bear the costs of travel and time off work regarding vaccinations.  The FWO has published their view that where an employer requires an employee to be vaccinated, the employer should cover the employee’s travel costs and if the vaccination appointment is during work hours, allow them to attend the appointment without loss of pay.

You should also consider the terms in any applicable Modern Award, enterprise agreements, employment contracts or workplace policies, in case they include rules about these types of issues.  Even when you do not require your employees to be vaccinated, you can still discuss work adjustments or leave arrangements to support them getting vaccinated.

REFUSAL TO BE VACCINATED

If an employee refuses to be vaccinated then you should, as a first step, ask the employee to explain their reasons for refusing the vaccination.  You may also ask the employee to provide evidence of the reason for their refusal, provided this is lawful and reasonable taking into account your particular circumstances.  You may be able to take disciplinary action, including termination of employment, against an employee for refusing to be vaccinated if the employee’s refusal is in breach of a specific law, or a clear and repeated lawful and reasonable direction requiring vaccination.  But this will depend on the individual facts and circumstances.  You need to be careful to ensure any disciplinary action taken does not breach any of the various protections’ employees have against being dismissed or treated adversely in their employment.

WORKERS COMPENSATION RIGHTS

Employees may have workers compensation protection in the event of any significant complications from the vaccine.  Specifically, they may be entitled to workers compensation if they sustain an injury from the vaccine, which occurred out of or in the course of employment, for example where their employer required the vaccination or subsidised the vaccination.  Under legislation, only a significant reaction to the vaccine may be considered an injury.

MORE INFORMATION

For further information regarding a vaccination policy or whether you can require your employees to be vaccinated, contact the team at HR Law on 07 3211 3350 or info@hrlaw.com.au for further information. 

Article written by Victoria Mitchell, Solicitor, and Meghan De Pinto-Smith, Associate, HR Law