With the first phase of COVID-19 vaccinations being rolled out in Australia, priority groups have been identified to receive the first available doses, for example quarantine and border workers, frontline health care workers, and aged and disability care staff and residents.
Can employers mandate the COVID-19 vaccine?
Some workers are wondering whether their employer will make the vaccinations mandatory. This is new territory that now needs to be carefully considered by all employers, and particularly those in the “high-risk” industries such as healthcare, disability care, and aged care.
The Federal Government’s official position for the general population is that the COVID-19 vaccine will be voluntary.
State and territory governments will each be responsible for developing their own COVID-19 vaccine implementation plans. So far, however, state and territory governments have not explicitly determined that specific high-risk industries should mandate the COVID-19 vaccine.
At the time of writing this, the Fair Work Ombudsman (FWO) currently advises the following*:
Whether an employer can require their employees to be vaccinated against coronavirus is highly fact dependent, taking account of the particular workplace and each employee’s individual circumstances. Relevant factors an employer should consider will include:
whether a specific law (such as a state or territory public health law) requires an employee to be vaccinated
whether an enterprise agreement, other registered agreement or employment contract includes a provision about requiring vaccinations
if no law, agreement or employment contract applies that requires vaccination, whether it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated (which is assessed on a case by case basis).
* It will be important to review any updates by the FWO regarding the interaction between COVID-19 vaccinations and workplace relations issues.
Under workplace health and safety (WHS) laws and regulations, employers have a duty to provide a safe working environment, so far as is reasonably practicable. Employees also have a duty to take reasonable care for their own health and safety, and that their actions or omissions do not adversely affect the health and safety of others, such as colleagues, clients, or patients.
Employers should take all reasonable steps to encourage unvaccinated workers to receive the recommended COVID-19 vaccines.
In general, healthcare, disability care and aged care employers may indeed be able to lawfully and reasonably justify mandating the COVID-19 vaccine. This is arguably a necessary WHS and infection control measure which allows employees to be able perform their duties safely while protecting their clients and patients. However, this is a complex matter that may pose a number of risks under the Fair Work Act 2009 and anti-discrimination legislation.
Employers should seek tailored employment relations advice before issuing any vaccine mandate.
3 key actions for employers to consider now:
1. Develop a vaccination policy. This will need to include your processes for managing various refusal scenarios, such as for medical/health reasons or for ideological/political reasons, and any potential employment pathways, options or outcomes. Your vaccination policy will also need to cover how you will manage recordkeeping and privacy.
2. Consult with your employees. Under WHS laws, employers who are making changes to the workplace to help slow the spread of COVID-19 must consult their workers. Your communication plan should include information about the COVID-19 vaccine, why a mandate may be reasonable and necessary in your workplace, and how you plan to implement your vaccination policy. You also need to give your staff ample opportunity to ask questions and discuss any concerns.
Employers now need to think carefully about the implications of a workplace mandate on the COVID-19 vaccine and decide what the organisation’s position will be in each situation. Employers also need to provide regular and clear communications to their employees, listen carefully to any staff concerns, and know your legal rights and obligations.
For more information and tailored advice, please contact us today.