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No Jab No Play: The Legality of an Employer Mandatory Vaccination Programme

With the first phase of Australia’s vaccination strategy slated to commence as early as late February 2021, a number of questions arise for employers considering the impact of a readily available vaccine on the workforce, particularly if the employer is considering implementing a compulsory vaccination programme in the workplace. Some of the questions being asked by employers, and which are considered in this article, are as follows:

  • Could an employer rely on government legislation making vaccinations compulsory?
  • Is requiring all employees to be vaccinated against COVID-19 a lawful and reasonable direction?
  • What happens if an employee refuses to consent to a vaccination?
  • What should employers be doing in the meantime?

Ultimately, as set out in more detail below, an employer will only be able to lawfully require an employee to be vaccinated in limited circumstances. For example, an employer may be able to direct an employee to be vaccinated if the employee is working in a high-risk environment (such as aged care) and the only way of performing the employee’s role safely is to require that the employee be vaccinated. Alternatively, the Government might by way of public health order require that employees in certain high-risk industries be vaccinated.

For the majority of employees and employers, however, the choice as to whether or not to be vaccinated is one that sits outside of an employer’s lawful scope of control over an employee. For most employers not operating in a high-risk environment for COVID-19 transmission, we believe the safest approach is to offer (and encourage) voluntary COVID-19 vaccination to employees as one of a number of control measures available to employers to reduce the risk of transmission, and to consult with employees to determine the most appropriate risk control strategy for their individual circumstances.

Could an employer rely on government legislation making vaccinations compulsory?

To date, the Federal Government has not made any suggestion that it intends to introduce legislation to make vaccinations compulsory. Indeed, the Australia COVID-19 Vaccination Policy, endorsed by the National Cabinet, identifies as a key principle (amongst others) that the vaccination will not be mandatory, but will be strongly encouraged.

Responsibility for public health (and, by implication, responsibility for managing the operational aspects of the strategy to manage the COVID-19 outbreak) still primarily rests within the state and territory governments. Accordingly, it would be open to state and territory governments to introduce legislation requiring compulsory vaccinations, for example, in certain industries.

All state and territory governments other than Victoria have already put in place public health orders giving effect to the federal government’s advice of mandatory flu vaccinations for employees before entering aged care facilities. Exercising the same public health emergency powers, state and territory governments could, for example, prohibit any person who has not received the COVID-19 vaccination from entering an aged care facility.

As an alternative to relying on emergency public health orders, the Victorian Parliament passed the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020 (Vic) (HSAA 2020), with effect from 25 March 2020. The HSAA 2020 broadly enables the DHHS to direct certain healthcare providers, including public hospitals, denominational hospitals, other health service establishments and ambulance services, to require specified workers to be vaccinated or demonstrate immunity against specified diseases. The HSAA 2020 expressly provides that any action a healthcare provider takes in compliance with a direction from the DHHS in these circumstances will not amount to discrimination based on political or religious belief (or both) or an activity under equal opportunity legislation. This provides a legislative basis for the Victorian government to require certain employees to be vaccinated, but to date no direction has been issued in accordance with the HSAA 2020 with respect to any COVID-19 vaccination.

Is requiring all employees to be vaccinated against COVID-19 a lawful and reasonable direction?

An employer has a right to issue lawful and reasonable directions to its employees. In addition to the requirements that the direction be lawful and reasonable, it must also relate to the subject matter of the employment.

One approach that an employer may take to argue that a direction to be vaccinated against COVID-19 constitutes a lawful and reasonable direction is to refer to its obligation under work health and safety legislation to ensure, so far as is reasonably practicable, the health and safety of workers and others in its workplace.

However, we believe that a barrier to relying on work health and safety laws to support a mandatory COVID-19 vaccination programme in many workplaces is the effectiveness and availability of other control measures, such as social distancing measures, personal protective equipment, rigorous cleaning schedules and operational changes (including staggered working times or days or working from home). In the absence of any data regarding the effectiveness of a COVID-19 vaccine as a control measure, and the low rate of community transmission for COVID-19 in Australia, in our view, the obligations of many employers under WHS laws are easily supported by the adoption of a variety of other less controversial control measures.

Of course, there is no one-size-fits-all approach, and for certain workplaces with high-risk profiles, such as aged care facilities and hotels facilitating the quarantine of Australians returning from abroad, vaccination against COVID-19 may be the most appropriate control measure to eliminate the risk of transmission.

Employers may also seek to argue that being vaccinated against COVID-19 is an inherent requirement of the employee’s position (that is, one of the essential activities that must be carried out to fulfil the position). In our view, except for those high-risk workplaces that must eliminate the risk of transmission, most employers would have difficulty arguing vaccination against COVID-19 is the only way of performing a role safely such that it is an inherent requirement of the position. As already discussed, for most workplaces, the availability of other control measures will allow an employee to perform their role safely.

Notably, in a recent decision by the Fair Work Commission, the circumstances of the case and the employer’s risk profile appear to have provisionally justified a direction as lawful and reasonable (and an inherent requirement of the position) for an employee working in a childcare centre to be required to be vaccinated against the flu: Arnold v Goodstart Early Learning Ltd [2020] FWC 6083. Deputy President Asbury noted the context of the employer’s operations “which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason…”. The issue was only touched on briefly, and the Deputy President did not express any final conclusions in this respect. However, it appears that in at least certain circumstances the Fair Work Commission is prepared to accept that a requirement that employees be vaccinated can constitute both a lawful and reasonable direction, as well as an inherent requirement of the position.

What happens if an employee refuses to consent to a vaccination?

If an employer introduces a mandatory vaccination programme in circumstances where doing so constitutes a lawful and reasonable direction to employees, and an employee refuses to consent to a vaccination, the employer will need to carefully consider the basis of the objection. In particular, if the employee objects on the basis of health concerns or on the basis of religious reasons, it will be necessary to ensure compliance with the employer’s obligations to the employee under applicable anti-discrimination legislation.

In the context of employees with a medical condition, disability discrimination will be the key concern. However, if the employer can establish that being vaccinated is an inherent requirement of the employee’s position, and that the adjustments required to allow the employee to meet that inherent requirement impose an unjustifiable hardship on the employer, this will provide a defence to any claim the employee seeks to make of unlawful discrimination under the Disability Discrimination Act 1992 (Cth), unlawful adverse action and unfair dismissal under the Fair Work Act 2009 (Cth).

If an employee objects to being vaccinated on the basis of religion, it will be necessary to consider whether the requirement to be vaccinated is an inherent requirement of the employee’s position. If so, this will provide a defence to any claim the employee seeks to make of unlawful adverse action and unfair dismissal under the Fair Work Act 2009 (Cth).

If an employee objects on any other grounds and an employer institutes a reasonable disciplinary process against such an employee (up to and including termination of employment), the employer will generally be in a good position to defend any claim brought by an employee, including an application for unfair dismissal.

What should employers be doing in the meantime?

There are several risk mitigation activities the employer should take in the context of introducing a vaccination programme (mandatory or otherwise) into the workplace, including:

  • Developing a vaccination plan that addresses matters such as whether the employer will allow employees to take paid time off to receive the vaccination, whether the employer may be able to have vaccinations administered at its worksites, and whether the employer is in a position to address any other barriers that its workforce may experience in being vaccinated.
  • Implementing a communication strategy about why the vaccine is being encouraged, and consulting with employees about the vaccination plan.
  • Consider reviewing employment contracts, policies and position descriptions to ensure that employees’ duties are clearly expressed and, where necessary, referable to any requirement that employees be vaccinated. Consider including a requirement that employees be vaccinated as an express term of employment for new employees.
  • Ensuring that policies and training with respect to record-keeping and privacy obligations are up-to-date, noting in particular that certain documents required of the employee as part of the programme, such as evidence of immunity, may not fall within the Privacy Act 1988 (Cth) employee records exemptions.

Final thoughts

Employers should remain alive to the fact that a vaccine is not a fail-safe for an employer’s obligations (both at common law and under WHS laws) to provide a safe working environment. Other control measures, such as social distancing measures, personal protective equipment, rigorous cleaning schedules and operational changes (including staggered working times or days or working from home) should also be considered, implemented as appropriate and their effectiveness reassessed regularly, as part of the employer’s WHS management system.