The COVID 19 Vaccination – can you force an employee to “take the jab” or can you incentivise the vaccinations?
Earlier this year, one of our consultants, Andrea Vickery wrote an article about COVID 19 Vaccination for employees, and whether or not employers could lawfully force an employee to have the COVID 19 vaccination.
Obviously there has been significant “water pass under the bridge” since that first article. In particular the slow roll out of the vaccinations; the general realisation that the only possible way out of the current COVID crisis is having a high percentage of the population vaccinated; and the risks that have been identified with some of the vaccines, have forced employers to consider how best they can try and have all of their employees vaccinated.
Just last week the CEOs of some of the major corporations in Australia met with the Treasurer and other Government officials to examine ways of having the COVID vaccinations delivered in the workplace. Whilst nothing concrete seems to have arisen from that meeting, there is a clear appetite for employers to try and have their employees vaccinated.
The Business Council of Australia is suggesting that employers offer “incentives” to employees to have the vaccinations. The suggestion is employers be prepared to give people vaccination leave, pay for their Ubers and taxis to travel to medical clinics, and ensure staff have access to trusted information. This type of incentive or support is often offered by employers to employees in respect to the flu vaccine on an annual basis, outside of the current pandemic.
However, in the past 6 months or so nothing has really changed in relation to this question as to whether or not an employer can force an employee to “take the jab”
The recent guidance from the Fair Work Ombudsman and Safe Work Australia has indicated that:
- employers cannot assume that they can direct employees to take the vaccine;
- employers who do direct employees to take the vaccine will need to demonstrate that it is a “lawful and reasonable direction”, which will be determined on a case-by-case basis; and
- vaccinated employees will probably not be able to refuse to come to work if other employees are not vaccinated (subject to any relevant health directions).
When is a Direction to Take the Vaccine Lawful and Reasonable?
Employers need to consider this in line with the individual circumstances of the business and employees. The relevant factors include whether:
- the nature of the work carried out by the employee and the business is relevant. For example, does the employer’s business involve circumstances which give rise to risks relating to COVID-19 transmission?
- the vaccine is required in order for the employer to meet their legal work health and safety obligations;
- the vaccination is an inherent requirement of the employee’s role;
- it is discriminatory to require certain employees to receive the vaccine (for example, due to religious beliefs); and
- what alternative arrangements can be put in place to reasonably manage the risk relating to employees who do not have the vaccine (for example, working from home)?
It may be obvious in some circumstances when it is a lawful and reasonable direction in relation to the vaccine. For example, where employees have close contact with vulnerable classes of people, such as in aged care and healthcare roles. However, for the vast majority of Australian businesses, the determination will not be this clear, and care will need to be taken. If employers are not in the category which requires that all staff are vaccinated, then it would appear that the most that you can do is to actively encourage, assist, incentivise and support staff to be vaccinated.
So, 6 months later our advice remains the same, and that is that 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. The delivery of vaccinations should be carried out under a clinical setting to monitor administration and possible reaction. Information in the Australian COVID-19 Vaccination Policy suggests employees will need two doses of the same COVID-19 vaccination, about a month apart and the vaccine will be free; and
- Considering inserting in new letters of offer and contracts wording that indicates an expectation that employees will be vaccinated in order to protect the health and safety of the employee and those around them.
This also a prudent time to have discussions and check-in with staff about how they are coping in the current environment, as the current COVID restrictions, fears for the future, and the constantly changing landscape is undoubtedly impacting the emotional well-being.
Should you require further information in relation to the matter, please do not hesitate to contact us.