As Australia grapples with the Delta strain of COVID-19, health experts and politicians say that vaccinations are our ticket to get out of the pandemic.
The National Cabinet has recently unveiled a plan for loosening restrictions and returning to pre-pandemic life – but entering the next phase of the plan depends on at least 70% of Australian adults being fully vaccinated.
In the UK, Prime Minister Boris Johnson – who has lifted most COVID-19 restrictions, including reopening nightclubs – has memorably promised to turn “jabs, jabs, jabs” into “jobs, jobs, jobs” during the UK’s economic recovery.
Many organisations are keen to push on with vaccinations to reduce the risk of serious illness, and minimise the disruption and loss of revenue associated with lockdowns. One top barrister says that the role of employers in Australia’s vaccination rollout “should not be underestimated.”
However, Prime Minister Scott Morrison has ruled out a “no jab, no job” policy, leaving the decision up to individual employers.
So, can Australian employers legally require their employees to get vaccinated before returning to the workplace?
Employment and work health and safety (WHS) law mechanisms
For some frontline and at-risk industries, workers do not have a choice. Vaccinations are mandatory for workers in the aged care sector from September, as well as quarantine workers, medical staff and construction workers in certain states. The Fair Work Ombudsman has a helpful state-by-state outline of industries with mandatory vaccinations.
If employment contracts and enterprise agreements do not include a clause about COVID-19 vaccinations, the official advice from the Fair Work Ombudsman is that employers can only require compulsory vaccinations, and to ask for proof of vaccination, if it would be “lawful and reasonable” to give that direction.
Whether a direction is “reasonable” is a case-by-case question. Factors to consider include:
- the nature of each workplace
- the extent of community transmission in that location
- the effectiveness of vaccines in reducing the risk of transmission or serious illness
- each employee’s circumstances, including their duties and the risks associated with their work
Dr Giuseppe Carabetta, an expert in employment law from the University of Sydney, also says that employers should consider whether alternative measures can be used effectively, and whether employees have legitimate personal circumstances which prohibit them from getting vaccinated, including vaccine availability.
It may also help, in deciding what is “lawful and reasonable,” to classify work into “tiers” based on contact with others:
- Tier 1: where employees are required to interact with people with an increased risk of being infected (e.g. border control)
- Tier 2: where employees are required to have close contact with vulnerable people (e.g. aged care)
- Tier 3: where there is interaction between employees and others in the normal course of employment (e.g. essential services)
- Tier 4: where employees have minimal face-to-face interaction (e.g. working from home).
Employers who make vaccines mandatory need to clearly articulate their reasoning, for example, that it’s necessary for the health of the workforce and the broader public. “The argument must be grounded in safety imperatives,” says lawyer Michael Byrnes, who also recommends backing up this direction with adequate control and hygiene measures, and providing a reasonable timeframe for employees to receive the vaccine.
Employers should also be mindful of their duty under section 19(1) of the Work Health and Safety Act, to ensure “so far as is reasonably practicable the health and safety at work of [their] workers”.
What regulators and unions have to say
Early decisions from the Fair Work Commission have generally sided with employers who make vaccines mandatory. In one case, involving an aged care worker who refused a flu vaccination because of historical health complications, the Commission said that her vulnerable clients ought to be able to expect that every precaution would be taken against a “lethal” combination of influenza and COVID-19 – while cautioning that “each circumstance of the person’s role is important to consider.”
Qantas recently joined food processing company SPC in requiring staff to be vaccinated, though unions have expressed concern about meeting this requirement is “reasonably practicable” and have requested further consultation. If employers impose mandatory vaccinations, the Fair Work Ombudsman says employers should give workers paid leave if their appointment is within work hours.
Some experts think that it would be lawful and reasonable to give a direction to employees in offices and shared workplaces, but mandating the same for employees that solely work from home is likely unreasonable.
On the flip side, legal experts in the UK have warned that making vaccinations compulsory could open employers up to discrimination and unfair dismissal lawsuits, while US law provides two exemptions for people with religious beliefs or medical conditions.
For workers who are concerned about working with unvaccinated workers, section 84 of the Work Health and Safety Act gives workers the right to stop or refuse to carry out work, if they have a reasonable concern about a serious risk to their health and safety due to an immediate or imminent hazard.
However, the Fair Work Ombudsman has said it’s unlikely that workers can simply rely on this section – it depends on the circumstances, such as whether the worker or the workplace is at high risk.
“Given the challenges, I’d expect, for now at least, to see most employers providing incentives instead of mandating vaccination, as is happening in the US,” says Dr Carabetta.
The Australian Labor Party has proposed a $300 cash payment for people to get the jab, while governments and businesses internationally have been offering million-dollar lotteries in Ohio, free eggs in China and free sausages in Germany. The legal consensus on incentive schemes is to make sure they are clearly documented, and to leave health advice up to experts.
No matter whether employers choose a carrot or a stick approach to vaccinations, there’s no doubt that private sector organisations have an important role to play in moving Australia closer towards recovery.
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