Mandatory Workplace Vaccinations | McCullough Robertson Lawyers

COVID-19 vaccination requirements in the workplace is an evolving discussion in Australia. Public health orders apply to some industries, but most employers in New South Wales are considering their obligation to implement a COVID-19 vaccination policy to ensure health and safety, and respond to employee and community concerns.

This article outlines the key considerations that Councils should turn their mind to when determining whether to introduce a mandatory COVID-19 vaccination policy.

What is the current situation?

In September 2021, the Fair Work Ombudsman (FWO) updated its guidance on COVID-19 vaccination following the Delta outbreak across Sydney. That updated guidance is here.

Importantly, the FWO changed its previous position that requiring vaccinations at work was unlikely to be reasonable, to a stronger view, that employees in high risk industries, who dealt with vulnerable cohorts and who were required to interact with others at work, could be subject to a COVID-19 vaccination requirement in the workplace.

Large employers have since published their policy positions. In August 2021, fruit processor SPC was the first Australian company to mandate the COVID-19 vaccine for all staff, including casuals, permanents and contractors. Soon after, the Qantas Group followed suit after receiving encouragement from a survey sent to 22,000 employees. Telstra has now followed this example.

Most employers, including Councils, will have a mix of employees who interact with others as part of their role, and other employees who could work remotely, without this interaction. This presents some complexity in assessing any COVID-19 vaccination policy that requires vaccination, as a ‘one size fits all’ approach will not work.

If Councils seek to implement a COVID-19 vaccination policy that encourages or incentivises employees to be vaccinated, including by providing paid leave, there will be different but important considerations at play.

Councils should pay particular attention to the NSW Local Government (COVID-19) Splinter (Interim) Award 2021, which entitles employees to take leave, without loss of pay, for the time reasonably required to receive a Therapeutic Goods Administration approved vaccination for COVID-19.

In this article, we set out the main considerations for Councils if a COVID-19 vaccination policy that requires vaccination is contemplated, but encourage tailored advice in the event any policy is introduced.

Considerations

Public health orders

Public health orders are enforceable government directions. In New South Wales, they operate under the Public Health Act 2010 (NSW).

Australia has not taken a blanket approach of broadly mandating vaccinations in public health orders. However, state and territory governments have made orders requiring certain workers living in specific areas of concern or working in specific industries to be vaccinated against COVID-19.

In New South Wales, for example, COVID-19 vaccination requirements apply to quarantine, construction, transportation and airport workers. Residential aged care facility workers, health care workers, early childcare and school staff will also need to be vaccinated in the coming weeks under public health orders.

Unless a public health order specifically refers to an industry, occupation or location (meaning a local government area of concern), an employer cannot rely on a public health order to authorise a COVID-19 vaccination requirement at work.

Lawful and reasonable directions

Employers not covered by a public health order must instead consider whether a requirement for employees to be vaccinated to enter the workplace is a lawful and reasonable direction.

Employers can issue lawful and reasonable directions to employees, and employees must comply with such directions to avoid breaching the terms and conditions of their employment. Directions are lawful if they do not involve the employee doing something illegal, which is almost always the case. Reasonable directions can be more difficult to define, because they require case-by-case considerations.

These considerations are based on context, including the nature and duties of the employee’s role, whether or not the employee interacts with any other person at work (and how), and other legal obligations that apply. Put another way, if a reasonable employer in the same position could implement the direction in the same circumstances, the direction is likely to be reasonable. The other considerations below are relevant to this question.

Health and safety obligations

Employers, including Councils, 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. This is relevant to the workforce, as well as to others who attend the workplace.

Employers should undertake risk assessments to:

(a) identify the nature of the employee’s position, its inherent requirements and the usual duties that the employee must do;

(b) identify risks to third parties;

(d) identify alternative measures to vaccinating the employee, being measures that may otherwise eliminate or mitigate against the risk of infection.

Based on current health advice, these include: remote working, increased cleaning and personal hygiene measures, mask mandates and rostering arrangements to increase physical distancing.

If any COVID-19 vaccination policy that requires vaccination is implemented, employers must consult with their employees about this policy before it is introduced and ensure that employees’ views are heard and considered.

Discrimination

Employees, and those people an organisation provides services to, are protected from discrimination on the grounds of disability.

An employer is able to implement conditions or requirements in the workplace, and these will not be discriminatory if they are reasonable in the circumstances.

However, in the context of vaccination, employees should be encouraged to notify their employers that they have a genuine medical reason to not be vaccinated if their position requires it. If this reason can be substantiated (for example, by a medical certificate expressly stating this) then the employee should be exempted from any requirement to be vaccinated. These instances will be very rare, and most employees will not be captured by this exemption.

Privacy

Where employers are asking employees to disclose their vaccination status, or intention to be vaccinated, they are asking information that the employee would not usually disclose, and this may be covered by privacy laws.

Councils are required to comply with the Health Records and Information Privacy Act 2002 (NSW) when they collect health information.

If this information is required under a public health order, then any request to collect or use this vaccination information is authorised by that law.

If there is no public health order, employers must take steps to obtain employee consent to collect vaccination information and inform employees what use will be made of the information (for example, will it be kept confidential by the employer, or will it be used to publish data about vaccination at the workplace?).

Proof of vaccination may be required to justify the COVID-19 vaccination leave payments available to employees under the NSW Local Government (COVID-19) Splinter (Interim) Award 2021.

Use and disclosure of vaccination information is permitted, but only if there is express consent to the person’s information being used in this way. There may be additional obligations on workplaces who captured vaccination information of third parties, such as contractors or visitors.

Given the enforcement of COVID-19 vaccine requirements in workplaces is a complex and evolving issue, we encourage Councils to seek legal advice.

McCullough Robertson are here to provide assistance. For further information on any of the issues raised in this alert, please contact:

Amber Sharp on +61 2 8241 5608
Kerry O’Brien on +61 2 8241 5617