Vaccinations and the workplace

Things you need to know

On 19 February 2021, Safe Work Australia and the Fair Work Ombudsman released updated guidance regarding the rights and obligations of employers to require employees to be vaccinated against COVID-19.

The new guidance suggests that most employers will not have a right or obligation to require employees to be vaccinated, however, all employers will continue to have an ongoing duty to eliminate or if not possible, minimise, so far as is reasonably practicable, the risk of exposure to COVID-19 in the workplace.

What you need to do

Employers must continue to eliminate or if not possible, minimise, so far as is reasonably practicable, the risk of exposure to COVID-19 in the workplace. According to Safe Work Australia it is ‘unlikely that a requirement to be vaccinated will be reasonably practicable’, but whether it is reasonably practicable needs to be determined having regard to an employer’s own circumstances, including the particular services that they may provide.

Vaccinations to combat infection and transmission of COVID-19 have started to be administered across the world. The Pfizer vaccine was approved for use in Australia in January 2021, followed by the AstraZeneca vaccine in February 2021. Australia has now commenced its priority COVID-19 vaccination program, with community vaccinations set to follow from May 2021.

Two important questions that now arise for many employers are:

a)  ‘Do I need to require my employees to get a COVID-19 vaccination?’; and

b)  ‘Can I require my employees to be vaccinated?’

On 19 February 2021, Safe Work Australia (SWA) and the Fair Work Ombudsman (FWO) released helpful guidance for employers on the issue of mandatory vaccinations in the workplace from both a safety and employment perspective, respectively.

While the FWO’s advice is ordinarily directed towards employers and employees in the federal employment system governed under the Fair Work Act 2009 (Cth), its guidance remains relevant to local and state government employers.

Do I need to require my employees to get a COVID-19 vaccination?

Employers 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. That begs the question, is it reasonably practicable to implement mandatory vaccinations as a control measure?

The SWA guidance specifically states that it is ‘unlikely that a requirement for workers to be vaccinated will be reasonably practicable’ because:

• public health experts, such as the Australian Health Protection Principal Committee, have not recommended a vaccine be made mandatory in any industries;

• there may not yet be a vaccine available for the employer’s workers;

• the workplace may be ‘low risk’ (because, for example, your workplace is in an area with no community transmission or no customer facing roles); or

• some workers may have medical reasons why they cannot be vaccinated.

‘Ultimately whether you should require your workers to be vaccinated will depend on the particular circumstances at the time you are undertaking your risk assessment’, says the SWA guidance.

Risk assessment and employer duties under model WHS laws

For most employers, compliance with the model WHS laws will not require making vaccinations mandatory. In this regard, SWA says that ‘a safe and effective vaccine is only one part of keeping the Australian community safe and healthy’.

However, it is envisaged that there are circumstances where it will be reasonably practicable to implement mandatory vaccination as a control; if not for an entire workforce, then at least for a portion of an employer’s workforce.

In determining whether to implement mandatory vaccination as a control, it is necessary to undertake a risk assessment of controls to manage the risks associated with COVID-19, ideally in consultation with workers and any health and safety representatives (HSRs). In undertaking such a risk assessment, employers should consider the following factors:

• Is the Australian Health Protection Principal Committee recommending COVID-19 vaccinations for all workers in your industry (or some industries in which you operate)?

• Will your employees be exposed to an elevated risk of infection as part of their work? e.g. hotel quarantine or border control.

• Do your employees work with people who would be vulnerable to severe disease if they contract COVID-19? e.g. aged care of health care.

• What is the likelihood that COVID-19 could spread in the workplace? e.g. do workers work in close proximity to each other?

• Do your workers interact with large numbers of other people in the course of their work that could contribute to a ‘super-spreading’ event if your workers contract COVID-19?

• What other control measures are available and in place in your workplace? Do those control measures already minimise the risk of infection, so far as is reasonably practicable?

• Would a requirement to be vaccinated be unlawful in the circumstances? e.g. would it discriminate against a class of employees?

Can a worker refuse to come to work because another worker is not vaccinated?

Under WHS laws, a worker can only cease or refuse to carry out work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety from an immediate or imminent exposure to a hazard.

The SWA guidance states that, in most circumstances, a worker will not be able to rely on the WHS laws to cease work simply because another worker at the workplace is not vaccinated. Again, however, this will depend on the circumstances.

The SWA guidance in this regard appears to be largely based on the fact that there is currently insufficient evidence about the impact of COVID-19 vaccines on the transmission of COVID-19. The current medical evidence suggests that while vaccinations are effective at preventing people getting sick, they are less effective at stopping transmission. Of course, the evidence is still emerging and medical opinions may change over time.

Can I require my employees to be vaccinated?

Regardless of whether or not employers must require employees be vaccinated against COVID-19, there is a separate question as to whether or not an employer may nevertheless require employees to be vaccinated.

As a starting point, employees are required to comply with their employer’s lawful and reasonable directions. But, is a direction to an employee to get vaccinated both lawful and reasonable?

There is an important distinction between directing an employee to get vaccinated, and directing an employee that they must be vaccinated as a pre-condition to attending work.

A direction to an employee to get vaccinated will usually not be lawful. That is because, in the absence of an employee consenting to a vaccination, a vaccination will amount to an unlawful assault. Importantly, however, directing an employee that they must be vaccinated as a condition of attending a workplace will generally be lawful,  although arguments about the reasonableness of such a direction may still arise, particularly if the employer seeks to take disciplinary action against any employee who fails to follow the direction.

In summary, whether or not any direction given is reasonable must be assessed on a case by case basis.

In our view, there will be occasions where requiring an employee to be vaccinated as a condition of attending work will be both lawful and reasonable because of the nature of a particular role.

While there are few cases on this issue to date, we expect that a court or tribunal would agree, for example, that it is lawful and reasonable for an employers who provide services to those in an aged care environment to require their employees, as a condition of attending the workplace, that they be vaccinated against COVID-19. Of course, there may be particular circumstances where even that may not be reasonable such as where, for example, the employee had a demonstrable medical reason that they could not receive the vaccination.