Aaron Goonrey, Partner, and Jessica McDonald, Lawyer at Lander & Rogers, discuss the issues employers will need to consider when deciding whether or not to implement mandatory COVID-19 vaccination in their organisation.
Summary
Employers are now contending with the next complex workforce management issue arising out of COVID-19 – workplace vaccination.
Once a reliable COVID-19 vaccination becomes widely available, employers will need to decide whether to require mandatory vaccination of employees against the virus. This is a multi-dimensional issue requiring consideration of the health and safety duties of employers, whether the direction is both reasonable and lawful, and whether a mandatory vaccination policy could give rise to discrimination or other claims from employees.
Work health and safety obligations
Employers have duties under state and territory work/occupational health and safety legislation. Under the model Work Health and Safety Act 2011 (Cth), which has been adopted in most states and territories, employers must ensure, so far as is reasonably practicable, the health and safety of their workers and other persons who may be put at risk from their business.
Implementing a mandatory vaccination policy may potentially be a reasonably practicable measure that should be taken by employers to ensure a safe workplace. Indeed, the cost of a vaccination will not be an obstacle to implementing such a policy, with the Australian Government’s Australian COVID-19 Vaccination Policy outlining that Medicare-eligible Australians will be able to have the COVID-19 vaccination for free on a voluntary basis.
The nature of an employer’s business and their employees’ risk of exposure to COVID-19 are also relevant considerations when deciding whether to direct employees to be vaccinated. For example, in industries where employees are working with vulnerable clients, such as aged care and healthcare, it is likely that a mandatory employee vaccination policy is a reasonably practicable measure to ensure the health and safety of employees and clients/patients. In other industries such as retail and professional services, the issue is less clear, especially given the intrusive nature of a vaccination.
Lawful and reasonable direction
As well as considering work health and safety duties, employers need to be satisfied that mandatory vaccination of employees is a reasonable and lawful direction. An exemption from the application of a mandatory vaccination policy on medical grounds is likely necessary. Employers should consider whether it is necessary to also grant exemptions for employees who object due to religious reasons, as well as whether the employer is willing to exempt employees who do not believe in vaccinations.
The availability of other measures to reduce the risk of COVID-19 spread will also likely affect whether mandatory vaccination is reasonable. For example, if an employee wears a mask while on work premises, is it still reasonable to direct them to be vaccinated? Before requiring vaccination, employers should carefully consider the nature of an employee’s role, the availability of other safety measures such as masks and hand sanitiser, and the ability to work from home as well as the extent to which risks associated with the COVID-19 vaccination are known.
Potential litigation
If an employee refuses to be vaccinated and is treated adversely by their employer as a result, depending on the employee’s reason for objecting to being vaccinated, the employee may claim protection under Commonwealth or state anti-discrimination legislation or the Fair Work Act 2009 (Cth). For example, if an employer dismisses an employee because they were unable to be vaccinated against COVID-19 due to a physical disability, depending on the circumstances this could potentially be unlawful.
In the Australian Capital Territory, Queensland and Victoria, employees of public authorities/entities may be able to seek protection under the relevant human rights legislation.
If an employee is dismissed because they refused to comply with their employer’s direction to be vaccinated, the employer may be confronted with an unfair dismissal claim. It is unknown how the courts and tribunals would respond to such a claim. However, the recent case of Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083 may provide an indication.
In this case, a Group Leader brought an unfair dismissal claim against her ex-employer Goodstart Early Learning Limited. Goodstart had introduced free mandatory influenza vaccinations for all employees with an exemption available on medical grounds. The Group Leader objected to the vaccination for no apparent medical reason and was dismissed.
As the Group Leader filed her unfair dismissal claim out of time, Deputy President Asbury was required to decide whether to grant an extension of time. Before deciding to refuse an extension of time resulting in the dismissal of the application, the Deputy President briefly considered the merits of the Group Leader’s application, concluding as follows:
“While I do not go so far as to say that the Applicant’s case lacks merit, it is my view that it is at least equally arguable that the Respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its 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. Prima facie the Respondent’s policy is necessary to ensure that it meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/or medical conditions. It is also equally arguable that the Applicant has unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position, which involves the provision of care to young children and infants.” [32]
The reasoning in this case suggests that in certain industries, failure to comply with a direction to be vaccinated against COVID-19 without a medical reason could potentially be a valid reason for employers to take further action.
Next steps for employers
Whether to implement a mandatory COVID-19 vaccination policy will likely be a very complex decision for employers. Employers should take the time to carefully consider the risks associated with their workplace and whether mandatory vaccination is likely to be a lawful and reasonable direction.
Regardless of an employer’s position on mandatory vaccination, the employer should at least consider the following actions:
- implementing a policy that addresses workplace vaccination and the measures taken to reduce the work health and safety risks relating to COVID-19;
- training employees on measures to effectively reduce the spread of COVID-19, including accurate information on the benefits and risks of vaccination;
- arranging for employees to voluntarily be vaccinated against COVID-19 during work time on work premises. Information contained in the Australian COVID-19 Vaccination Policy suggests that employees may likely need two doses of the same COVID-19 vaccination, about a month apart; and
- considering providing incentives to entice employees to voluntarily be vaccinated against COVID-19, while being careful to avoid any unintended unlawful discriminatory impact on employees who are unable to have the vaccination due to health, religion or other protected reasons.
Aaron Goonrey is a Partner in Lander & Rogers’ Workplace Relations & Safety team. He is a highly experienced industrial relations and employment lawyer and provides advice and litigation representation across these specialty areas. Connect with Aaron via email or LinkedIn 
Jessica McDonald is a Lawyer in Lander & Rogers’ Workplace Relations & Safety team. Jessica has experience in a wide range of areas within the field of workplace relations and employment law. Connect with Jessica via email or LinkedIn
