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Can employers require workers to be vaccinated for COVID-19?

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Authors:  Chao Ni, Principal & James Sanders, Senior Associate

On 6 August 2021, Prime Minister Scott Morrison stated that the legal advice that he had received from the Solicitor General’s office was that each employer will need to consider and decide whether to make a reasonable directive to its workers to be vaccinated and that the “reasonableness” of any direction to a worker to be vaccinated extended to “four tiers” of employees.

On the same day, the National Cabinet issued the following statement on employee vaccinations:

National Cabinet received a briefing from the Solicitor General on the use of vaccinations in the workplace.

Australia’s policy remains that vaccines should be voluntary and free.

Businesses have a legal obligation to keep their workplaces safe and to eliminate or minimise so far as ‘reasonably practicable’ the risk of exposure to COVID-19.

In general, in the absence of a State or Territory public health order or a requirement in an employment contract or industrial instrument, an employer can only mandate that an employee be vaccinated through a lawful and reasonable direction.

Decisions to require COVID-19 vaccinations for employees will be a matter for individual business, taking into account their particular circumstances and their obligations under safety, anti-discrimination and privacy laws.

Businesses are encouraged to review guidance provided by the Fair Work Ombudsman and Safe Work Australia in considering what directions may be lawful and reasonable, and the approach to keeping workplaces safe through the use of vaccinations.

Fair Work Ombudsman

The Fair Work Ombudsman initially took a cautious view that “the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus”.  On 12 August 2021, however, the FWO updated its website to as follows:

Employers can only require their employees to be vaccinated where:

  • a specific law (such as a State or Territory public health order) requires an employee to be vaccinated;
  • the requirement is permitted by an enterprise agreement, other registered agreement or employment contract, or
  • it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis.

Employers should also consider how protections for employees under anti-discrimination laws may apply.

The FWO also provided clarity on the Government’s 4 Tier system as follows:

  • Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).

  • Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).

  • Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public, in the normal course of employment (for example, stores providing essential goods and services).

  • Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

Leading Silk Opinion

Former Australian Law Council president, barrister Arthur Moses SC, provided his insight on the issue in his recent paper where he made the following comments:

  • There is a term implied in law in every contract of employment requiring an employee to obey the “lawful and reasonable directions” of their employer…
  • Because the requirement involves a consideration of the “reasonableness” of the direction…factors to be considered before issuing a direction that an employee receive the COVID-19 vaccine:

    • Is the workplace “open plan”, or are employees effectively able to avoid physical proximity to one another?

    • How many employees are typically present in the workplace?

    • Does the workplace involve contact with the general public?
    • What are the individual reasons for the employee declining to have the vaccine?

What options are now available to employers?

Right now, employers can take one of the following options when it comes the contentious issue of vaccinations in the workplace:

  1. Do nothing and wait for legislation or case law to further develop in this area.

  2. Engage in discussion with workers to find out what proportion of the workforce would consent (or refuse) vaccination.

  3. Implement an opt-in vaccination policy involving paid time for consenting workers to be vaccinated at the employer’s expense.

  4. Implement a compulsory vaccination policy, subject to bona fide medical or religious exemptions.

Given the state of the current laws on mandatory vaccination policies, our view is that a direction to any employee to receive a vaccination must be “reasonable”.

Factors in support of ‘reasonableness’ may include the following:

  • Mandatory vaccination is required by an express term of an enterprise agreement or employment contract that applies to the employer and employee.

  • It is an inherent aspect of the employee’s functions to have in-person contact with people (including with co-workers and members of the community), but in particular, vulnerable people (i.e. the old, the young, the frail and the sick).

  • The employee works in an industry which could lead to significant propagation of COVID-19, such as in the industries of travel, meat processing, food manufacturing, health care, etc.

  • The history of or current risk of community transmission of COVID-19 in the employee’s work location.

Factors against ‘reasonableness’ may include the following:

  • The employee has bona fide medical or religious grounds to refuse vaccination.

  • The employee is in a “Tier 4” position.

  • The employee is able to work 100% remotely or in isolation from other people.

What next?

Despite the mixed messaging from employer groups, Governments and union bodies surrounding this contentious topic, the decision of whether to require workers to be vaccinated, currently sits with individual employers to make. Until and unless the Government legislates or mandates workplace vaccinations, or the Courts make rulings on test cases, this will remain the case.

We encourage employers to engage with their employees to adopt a collaborative approach at the first instance (rather than issue a directive that may create workplace disharmony) as the vaccine rollout continues and availability increases.  A consensual approach will remove all risk.

We strongly encourage you to seek legal advice from the Employment Law team at MST Lawyers on all issues relating to OH&S, COVID-19 vaccinations, employee disputes and termination of employment.  Contact the MST Employment Law team at EmploymentLaw@mst.com.au  or +61 3 8540 0266.