The COVID 19 Vaccination – can you force an employee to “take the jab”?
Roll out of the COVID-19 vaccination is expected to commence in March and employers may then need to decide whether to require mandatory vaccination of employees against the virus. This is a multi-dimensional issue requiring consideration whether the direction is both reasonable and lawful, health and safety obligations, and whether a mandatory vaccination policy could give rise to claims such as discrimination, adverse action or unfair dismissal etc.
Lawful and reasonable direction
Employers have the power to issue ‘lawful and reasonable’ directions to workers. Whether it is ‘lawful and reasonable’ for an employer to direct its workers be vaccinated, has not been tested in the courts. In the closest parallel case, it was ruled by the Fair Work Commission that it was “at least … arguable” that Goodstart, a child care centre, who dismissed a worker for refusing a flu shot, was entitled to do so because it was seeking to protect the children in its care.
In another related matter that is currently before the Fair Work Commission (FWC), the FWC is currently considering whether the employer, in the healthcare and aged care industry, lawfully stood down an employee who refused to be vaccinated for the flu for medical reasons, and whether the mandatory immunisation policy introduced by the employer was reasonable in the circumstances. In some preliminary comments, the Commissioner noted the importance of considering each circumstance of a person’s role and workplace in determining whether an employer’s decision to make vaccination an inherent requirement of the role is a lawful and reasonable direction.
The availability of other measures to reduce the risk of COVID-19 spread will also affect whether mandatory vaccination is ‘lawful and 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.
Employers will also need to consider granting exemptions for employees who object due to medical grounds, religious reasons and whether the employer is willing to exempt employees who do not believe in vaccinations.
Work health and safety obligations
Employers have a duty of dare under work/occupational health and safety legislation “to 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”.
The nature of an employer’s business and their employees’ risk of exposure to COVID-19 are relevant considerations when deciding whether vaccinations should be mandatory. 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, hospitality and professional services, the issue is less clear, especially given the intrusive nature of a vaccination.
If an employee refuses to be vaccinated and is treated adversely by their employer as a result, depending on the employee’s reason for the objection, 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 may be deemed unlawful.
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. This has yet to be tested in the courts but the Goodstart decision mentioned above, indicates that failure to comply with a direction to be vaccinated against COVID-19 without a medical reason, in certain industries, could be a valid reason for dismissal.
Next steps for employers
Whether to implement a mandatory COVID-19 vaccination policy will likely be a very complex decision. 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. 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.
SafeWork Australia also have tools on their website which will assist our clients in the consideration of the delivery of the vaccine and other measures to assist in complying with the duty of care and WHS responsibilities.
By Andrea Vickery, Consultant