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With Australia’s vaccine roll-out well underway, and the highly transmissible Delta strain of COVID-19 causing lockdowns across almost every Australian state and territory, many employers are considering their options and obligations with respect to the implementation of mandatory vaccination policies.
There is no ‘one size fits all’ answer to the question of whether an employer can lawfully require its employees to be vaccinated. The extent to which an employer can impose a mandatory vaccination policy will be determined by reference to the touchstone of ‘reasonableness’. Of course, questions of ‘reasonableness’ are notoriously difficult to apply uniformly and sensibly across all employers in Australia. However, given the high transmissibility of the Delta strain, and the substantial health consequences for some who are infected, for many employers there will be a legitimate legal basis to consider the introduction of a mandatory vaccination policy.
We have set out below some of the key questions that employers are asking, and the considerations that are relevant in determining the legality of implementing a mandatory vaccination policy in your workplace.
When can an employer require employees to become vaccinated against COVID-19?
Employers will be lawfully permitted to require employees to become vaccinated against COVID-19 when doing so constitutes a ‘lawful and reasonable direction’. Of course, employers can never forcefully require employees to be vaccinated without their consent. But we are of the view that in many circumstances, employers will be able to impose as a condition of employment, or as a condition of access to the workplace, that employees must be vaccinated against COVID-19.
In considering whether or not it is lawful and reasonable to implement a mandatory vaccination policy, there are a number of considerations that must be taken into account, including:
Each of these factors will depend heavily on the specific circumstances of the workplace and each employee.
At a high level, however, one of the key factors in assessing whether it will be reasonable to require employees to be vaccinated against COVID-19 are the health and safety risks in the workplace. The Federal Government has proposed a four-tier system of risk for workplaces, as summarised below:
|1||Direct contact with the COVID-19 virus.||
This includes workplaces where employees may be in direct contact with persons potentially infected with the COVID-19 virus, and therefore at higher risk of potentially becoming infected and acquiring the virus. This could include workplaces such as quarantine facilities, airports, airlines and front-line health workers.
Some Tier 1 workplaces or occupations may be subject to public health orders.
|2||Direct contact with persons vulnerable to risk of serious injury or death from COVID-19 infection.||
This includes workplaces where employees are working with people who are particularly vulnerable to the risk of serious injury or death from contracting COVID-19. This could include workplaces such as residential aged care and disability service providers.
Some Tier 2 workplaces or occupations may be subject to public health orders.
|3||Customer facing workplaces.||
This includes workplaces where employees are publicly facing in their daily work. This could include workplaces such as retail, hospitality, health and allied services, and education.
Many Tier 3 workplaces are unable to continue to provide customer facing services during government imposed business restrictions and lockdowns, and may not be able to facilitate their staff in working from home arrangements.
|4||Limited contact with customers.||This includes the remainder of workplaces where employees are not in often close contact with others in the course of their work and are likely better able to accommodate working from home arrangements.|
It is important to note, however, that management’s prerogative to introduce a mandatory vaccination policy is not solely limited to first order considerations of health and safety. Other relevant considerations may include the employer’s desire to minimise the impacts of COVID-19 on the effective conduct of its business and to protect its:For employers in the first three tiers of workplaces, the health and safety risks associated with the transmission of COVID-19 in the workplace are much higher than in Tier 4. This may mean that vaccination as a precondition of work in some roles could be justified on health and safety grounds (and may also already be covered by state and territory public health orders). In other workplaces, the assessment is less clear and requires an analysis of the level of risk and the practicality of available control measures.
It is important to note, however, that management’s prerogative to introduce a mandatory vaccination policy is not solely limited to first order considerations of health and safety. Other relevant considerations may include the employer’s desire to minimise the impacts of COVID-19 on the effective conduct of its business and to protect its:
Having regard to the above factors, on balance is likely that many employers within Australia could be in a position to issue a lawful and reasonable direction requiring employees to become vaccinated as a condition of employment.
As is set out in more detail below, any mandatory vaccination policy will need to comply with existing laws, including with respect to anti-discrimination.
How will anti-discrimination laws impact a mandatory vaccination policy?
The key risk from a discrimination perspective is the approach taken with respect to employees who have medical conditions for which obtaining any of the available COVID-19 vaccinations is contraindicated. It will be important to carefully navigate such cases in order to avoid contravening obligations imposed by disability discrimination legislation.
Employers will need to consider whether it would be possible to exempt such employees from any requirement to become vaccinated. Alternatively, it may become necessary to consider whether any of the exceptions under any applicable discrimination law are enlivened, such as where it can be established that becoming vaccinated forms an inherent requirement of the role, or where any other approach would impose an unjustifiable hardship on the employer.
Aside from disability discrimination legislation, employers will also need to be cognisant of obligations imposed by age discrimination legislation, as well as potential obligations with respect to religious discrimination or race discrimination in certain circumstances.
Can we offer incentives to staff to become vaccinated instead of implementing a mandatory policy?
Many employers are opting, at least initially, to incentivise staff to become vaccinated rather than implementing a mandatory vaccination policy. Employers who do so will need to consider any implications arising under discrimination legislation for employees who are unable to obtain a vaccine, for example, because of an existing medical condition.
Additionally, the Therapeutic Goods Administration (TGA) has provided permissions and guidance on when an entity, including an employer, can offer valuable consideration (which means any offer of value, whether it is goods, services or some other benefit) to people who have been fully vaccinated under the government's national COVID-19 vaccination program. The following conditions have been imposed by the TGA on any such offer:
There are a number of considerations that must be weighed up by employers in considering their approach to implementing a vaccination policy, whether mandatory or otherwise. We recommend obtaining appropriate specialist advice in order to ensure that the various applicable regulatory and legislative regimes can be navigated.
For more information about this article, please contact our Workplace and Employment partner James Simpson.