Federal Minister for Health, Greg Hunt, has told Australia that the vaccine roll out could occur as early as next month, and savvy employers are asking the question of whether they can make vaccinations mandatory in the workplace context.
Up to 680,000 people are set to receive the first lot of vaccinations from mid-to-late February. That group includes quarantine and border workers, frontline health workers, and aged care and disability staff and residents. This makes sense given their level of exposure to risk or involvement with those most at risk.
The Federal Government has indicated that, with the possible exception of high-risk industries, it will be adopting an approach of strongly advocating for, but not generally mandating, vaccinations. What does this mean for businesses though?
Legal experts are saying that an employer’s right to impose a vaccination policy comes down to workplace health and safety. This means that the context in which the business operates (and hence the related risk factor) will play an important role in deciding what is ‘reasonable’. What is reasonable in the context of an aged care facility or a hospital is likely to be different to what is reasonable in an office setting or a farming environment.
According to Karl Rozenbergs, partner at Hall & Wilcox, “A direction to get the vaccine is more likely to be lawful and reasonable for businesses that face higher risks of an outbreak.”
Taking it one step further, if it is reasonable for a workplace to require vaccination, can the employer terminate an employee for not taking the vaccine? Again, Rozenbergs’ position is that “An employee who is dismissed for preventing their employer from meeting its WHS obligations through their refusal is unlikely to succeed in making an unfair dismissal claim”. Keep in mind that this is yet to be tested in the Courts.
There are precedents for both governments and workplaces to use punitive measures to push vaccinations. The No Jab, No Pay policy reduces some social security payments if a child’s shots are not up to date; and in an early childcare case in late November 2020, the Fair Work Commission considered a case involving an employee’s termination of employment due to refusal (based on personal preference) not to vaccinate despite company policy. In this case, Deputy President Ingrid Asbury said the employer’s direction was reasonable and lawful in the context of the workplace – working closely with children. The reason for the employee refusing and the type of work being undertaken were two important points of the case.
Employers should expect some resistance from their people and consideration needs to be given to those who are not able to be vaccinated or have a preference not to based on religious, political or personal beliefs. Indications are that medical reasons (e.g. allergies) would indicate the need for an exception, whereas preferential based choice not to vaccinate may not be a legitimate reason for employees to refuse to vaccinate.
Things to consider:
If you are implementing a vaccination policy in your business, we recommend that you consider:
- The government and health advice at the time including the success of the vaccine program and any risks identified.
- The nature of the work being performed by the employee and the nature of contact an employee has with others, in particular those that are vulnerable.
- Are there ways to encourage rather than mandate? For example, financial rewards, preferred shifts and allowing employees to be vaccinated during work hours and ensuring the costs are met.
- Look to accommodate rather than discipline. For example, negotiating a change in work arrangements (remote work, change in duties to reduce exposure etc) for employees unable or unwilling to be vaccinated.
- Reducing possible risk. Do not direct employees to use particular vaccine types or suppliers, instead allowing them to seek their own medical advice.
- Communicate clearly and consistently on the need for the policy. Be sure the reason is sound and allow opportunity for 2-way communication during implementation.
- Be clear on processes and consequences. Ensure a clear process is in place if an employee does refuse, with reasonable discussions taking place on why and what will happen as a result.
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