The introduction of the COVID-19 vaccination in Australia has led to confusion amongst employers and employees as to whether the vaccination can be, or will be, made mandatory in the workplace.
Employers have a duty of care to provide a safe workplace to their employees under Work Health and Safety laws.
This includes eliminating or, if that is not reasonably practicable, minimising the risk of exposure to infectious diseases in the workplace. This applies not only to the employees, but to the protection of those they come into contact with, including clients and customers.
The Fair Work Commission has highlighted that employers, even when their employees have been vaccinated, continue to have an obligation to minimise their risk of exposure to infectious diseases. Safe Work Australia provides guidance for employers regarding the vaccination of workers in certain industries and the test that employers should use to determine if their workers are at risk.
The introduction of the COVID-19 vaccination in Australia has led to confusion amongst employers and employees as to whether the vaccination can be or will be made mandatory in the workplace.
On 28 June, 2021, the National Cabinet agreed that COVID-19 vaccinations are to be mandated for residential aged care workers as a condition of working in an aged care facility through shared state, territory and Commonwealth authorities and compliance measures.
From 31 March, 2021, Queensland had previously mandated coronavirus vaccination for health services employees, Queensland Ambulance Service employees and hospital and health services contractors who were in contact with a COVID-19 area.
Outside of those industries, whether a mandatory vaccination policy can be implemented depends on the individual circumstances of the workplace. The employer must ensure that the policy is lawful and reasonable.
In a recent case involving a childcare worker who was dismissed for failing to vaccinate against the flu, the Fair Work Commission described the meaning of lawful and reasonable as set out below:
Falls within the scope and stipulations required by the employment agreement
To be lawful, a direction does not require a positive statement of law endorsing an action; a direction can be classified as lawful provided that it does not involve illegality and ‘falls reasonably within the scope of service of the employee’
Reasonable and relates to employment
The direction must relate to the subject matter of the employment, which is informed by the ‘nature of the work the employee is engaged to do, the terms of the contract, and customary practices or the course of dealings between the parties’. The policy need only be reasonable, and it is immaterial that a ‘better’ policy may exist.
This case involved a flu vaccine. However, in the case of the coronavirus vaccination mandate, the vaccine is not yet readily available to all employees and therefore mandating such a vaccine with immediate effect may not be considered reasonable.
Therefore, employers who are seeking to mandate vaccinations for their employees should ensure that the policies are:
Implemented with sufficient reason
Compliant with industry recommendations
Compliant with their legal obligations as an employer
Consistent with the risk in the type of work performed
Compliant with government recommendations
Compliant with their contractual obligations as an employer
Employers should also consider whether their policies are flexible and have reasonable conditions for persons who may have a medical exemption from being administered certain vaccinations. Failure to make provisions for such exemptions may see the employer failing
to comply with their obligations under the anti-discrimination laws.
While recent cases have indicated that mandatory vaccination policies will be supported by the courts in the employer’s favour, it is important that employers are aware that there are other obligations to minimise risk to employees other than vaccinations. These obligations include providing necessary control measures to prevent the spread of disease.
If you’re considering mandating vaccines in your workplace, you should seek legal advice before taking any action. Call our office on 07 5444 1022 to discuss with one of our employment lawyers today.
Greenhalgh Pickard’s employment and business law solicitors
