As Australia opens up, every employer needs to grapple with an important question – should you enforce a mandatory covid vaccine at work?

Dealing with this issue can be fraught. Many employees hold passionate opinions on either side of the mandatory vaccination debate.

As a business manager, you need to consult with everyone, but getting all of your employees on the same page will be difficult.

Should I Mandate Vaccines?

The short answer is that most businesses should mandate vaccines for their staff, for a variety of reasons.

Most importantly, businesses have a duty of care to minimise the risk of their employees contracting Covid-19. Employers need to keep the workplace safe by law. 

One way of doing this is through mandatory vaccination, but it’s not as simple as sending out an email telling all staff that they need to get the jab.

Some industries have mandatory vaccinations in Australia, although it varies depending on which state you’re in.

The Fair Work Commission has also warned the pandemic doesn’t automatically give employers the right to force their workers to get jabbed. They will look at the issue on a case-by-case basis.

Once you’ve determined whether you can require employers to get vaccinated, you’ll need to make sure you have a proper privacy policy for collecting their vaccine status.

Finally, you’ll also need to make sure you give employees a reasonable amount of time to comply with a direction to get vaccinated.

Duty Of Care To Your Employees

Every business has an obligation to keep its workplace safe. The same principles apply to Covid-19. Under Workplace Health and Safety laws, employers have a duty to eliminate or minimise the risks of Covid-19 in the workplace.

Vaccinations don’t eliminate the risk of catching or passing on COVID-19. However, vaccines do minimise the risk.

This doesn’t mean you have an automatic obligation to have mandatory covid vaccine’s in the workplace.

It could mean you meet your Health and Safety obligations through a combination of vaccines and other Covid-19 prevention measures.

Industries with Mandatory Vaccine Orders

Public Health Orders force some businesses to make sure all their employees are vaccinated.

All Aged Care and Hotel Quarantine workers in Australia are required to have two doses of the Covid vaccine.

But, from here, it gets messy, because other workers are governed by individual state laws.

For example, New South Wales requires employees in a large number of customer facing industries (like pubs) to be vaccinated.

In other states where there hasn’t been a large-scale Covid outbreak, like Queensland, there are no mandatory covid vaccine requirements yet. That’s likely to change.

You can find the vaccine requirements on each state’s website.

mandatory vaccinations australia

The Fair Work Ombudsman Rules

If your workplace is not covered by a public health order, you’ll need to make a decision about whether to mandate vaccination.

The Fair Work Ombudsman has issued some guidelines for what could be a “Reasonable Direction” to get vaccinated, but they’re not straightforward.

What’s reasonable for one employee might not be for another, so you’ll need to use discretion. This includes employees who have a medical reason not to get vaccinated.

The guidelines say that the greater the risk of being infected with Covid-19 at the workplace, the more likely the direction to vaccinate is to be reasonable. To illustrate, Fair Work created four tiers of work.

 

  • Tier 1 work, where employees are required to interact with people with an increased risk of being infected with coronavirus (for example, hotel quarantine or border control). 
  • Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to coronavirus (for example health care or aged care).
  • Tier 3 work, where there is interaction or likely interaction between employees and other people such as other employees, customers, or the public (for example, a pub).
  • 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).

Vaccine mandates for employees engaged in Tier 1 work are more likely to be seen as reasonable. Having said that, there are many businesses which would be classified as “Tier 4” which have mandated the vaccine to protect their staff.

Accounting firms like KPMG and Deloitte, big banks like Commbank and Westpac and other major businesses have all introduced mandatory vaccination.

As things stand, the courts haven’t ruled on the legality of these mandates. Over time, there are likely to be many unfair dismissal, general protections and discrimination cases involving mandatory vaccination policies. 

However, in a case earlier this year, a challenge to an Aged Care Home’s requirement for employees to have the Flu vaccine was dismissed.

Privacy

You need to ensure you comply with privacy law before you direct an employee to disclose if they’ve been vaccinated.

An employee’s vaccination status is classed as sensitive health information and is protected under the Privacy Act.

Charles Power is the editor of the Portner Press Employment Law Handbook and a Partner with Holding Redlich. He says there are specific rules around when you can ask for an employee’s vaccination status.

“To ask for an employee’s vaccination status, the information must be reasonably necessary for your organisation’s functions, and you need to seek it through lawful and fair means, including having a proper APP-compliant privacy policy and collection notice.”

In practice, requiring the information for your organisation’s functions means having a well defined and reasonable mandatory vaccination policy.

It’s unlikely your data collection will be lawful if you don’t have a privacy policy. It’s also crucial to make sure the information you collect is only used for its stated purpose.

Anti-Discrimination Laws

National and state-based anti-discrimination laws make it illegal for you to discriminate against employees on certain protected attributes. 

Protected attributes include sex, race, religion, pregnancy, disability, and age. Some employees may have legitimate reasons, based on these attributes, not to take the vaccine. 

It’s important that you know the protected attributes in your state. You should carefully consider any employee’s claim that they have a protected attribute, like a medical condition which means the vaccine would threaten their health.

If you get a discrimination claim, you might decide to exempt the employee from the vaccination. However, if you believe the policy is reasonable, you can choose to defend the claim.

Unfair Dismissal

Almost certainly, some employees will refuse your direction to get a vaccination. This may result in their employment ending.

If the employee brings an unfair dismissal case because of their opposition to mandatory vaccination, the Fair Work Commission will decide on the rules legitimacy on a case by case basis.

You can reduce the risk of an unfair dismissal liability by ensuring the process you follow is reasonable.

This includes having an appropriate mandatory vaccination policy, which provides for exemptions on valid medical grounds.

When an employee refuses to comply with the policy, it’s important to give them an opportunity to explain their reasons for refusing as well as consider them.

Exploring alternative arrangements such as leave, work from home and redeployment is also a good idea. However, you should not discriminate against employees with legitimate reasons not to vaccinate.