Can Australian employers make the COVID-19 vaccine mandatory for workers?

The federal government says employers will be left to give "reasonable directives" to their staff on COVID-19 vaccinations. But what exactly does that mean, and how might it work in practice? We asked a legal expert.

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Employees at risk of catching COVID-19 in the workplace may be forced to get vaccinated under new guidelines.

The Fair Work Ombudsman has now updated its vaccine guidance and categorised workers into four tiers of risk. The federal government has refused to mandate vaccines for all workplaces, saying employers will be left to give “reasonable directives” to their staff.

But legal experts say a “reasonable” mandate must be assessed on a case-by-case basis and that employers are responsible for creating a COVID-safe workplace and engaging with staff and unions before the mandate.

Here’s a breakdown of what we know so far and how things could work.

Which workers are currently required to get vaccinated?

Like all vaccinations in Australia, the COVID-19 vaccine is voluntary at a government policy level, with some exceptions.

In June, Australia's national cabinet agreed . For other high-risk workers, such as hotel quarantine workers, aged care workers, and airport and transportation workers, the rules may differ from state to state.

But another category is now causing debate; employees who work in COVID-19 hotspots and could potentially catch the virus.

What are the revised workplace guidelines?

The Fair Work Ombudsman on Thursday released updated information for employers after Prime Minister Scott Morrison rejected calls to indemnify businesses.

The updated advice outlined four “tiers” of work to help assess whether there’s a “reasonable” request.

  • Tier 1 refers to employees interacting with high-risk people, such as hotel quarantine and airport workers.
  • Tier 2 refers to those who interact with vulnerable people, such as health care and aged care workers.
  • Tier 3 is in regard to employees with public day-to-day interaction, such as essential retail and supermarket workers. This tier falls into a “grey” area where case-by-case assessments for “reasonable” directions to get vaccinated are most likely to appear.
  • Tier 4 is for employees with minimal face-to-face contact.
But while businesses in coronavirus hotspots will now be on safer legal ground to mandate vaccines, the prospect of court challenges remain.

What does the federal government say?

Mr Morrison has ruled out mandating COVID-19 vaccinations at a federal policy level. He said last week employers must “make their own decisions” when it comes to enforcing vaccinations for high-risk workers.

"We do not have a mandatory vaccination policy in this country. We are not proposing that. That is not changing," he told reporters in Canberra.

“Ultimately, employers need to consider these matters and make their own decisions.”

He said employers can give a “reasonable directive” to their staff, provided it complies with discrimination law.

“Where an employee may be at great risk of actually contracting the virus, the employer would be in those circumstances seeking to afford some protection for their staff and upholding - in their view - their obligations regarding the occupational health and safety of their staff.”

Mr Morrison listed airline workers, aged care workers and retail staff as examples of those for whom it may be appropriate to mandate vaccines, based on their proximity to people who may be carrying the virus.

“It is not the intention of the Commonwealth or of the states and territories to create any special laws in these areas,” he said, adding such decisions would be "decided by the courts".

What is a ‘reasonable directive’ to get vaccinated?

This depends on the risk within the workplace, where that workplace is located, and the worker’s individual risk profile.

The Ombudsman says in areas where no community transmission has occurred for some time, a directive for employees to be vaccinated is less likely to be considered reasonable.

For businesses that need to remain open during lockdowns, community transmission makes mandatory workplace vaccinations more likely to be reasonable.

Kamal Farouque, a principal lawyer at Maurice Blackburn who specialises in employment law, said there are several factors to consider in mandating a vaccine.

One is the nature of the disease, which in this case is highly significant.

“In COVID’s case, we know it’s very dangerous. We know it causes risk of causing death or serious injury. Too many people are exposed to it,” he told SBS News.

The second is the mode of transmission.

“We know it’s airborne. This is relevant because in many workplaces where people are in close proximity, there is a risk of transmission.” 

People working indoors, for example, would be at a higher risk of transmission than outdoor workers with more distance between them.

The employee’s individual circumstances - such as whether they are particularly vulnerable to health risks, or have a higher risk profile due to their age or medical history - also factor in.

What should employers do?

If an employer is considering mandating the COVID-19 vaccine for staff members, Mr Farouque said resorting to a directive should not be the first port of call.

First, he said, employers should consult with the unions and employees, and consider their views.

“The worst thing you can do is resort to the power of direction. Whereas if you embark on a process of explaining your position, explaining the basis upon which you arrived at that position, and take into account their views, you’re more likely to bring those people with you.

“Of course, the goal here is to get as many people vaccinated as possible.”

He said employers need to additionally assess the risk within that particular workplace of catching COVID-19.

“Is there adequate ventilation in the workplace? Are you monitoring CO2 in the workplace, which is a good indicator that airflow is poor? Basically, what are you doing as an employer other than resorting to the power of direction?”

Mr Farouque said if an employer does mandate the vaccine, they should cover the worker’s travel costs and consider giving them paid time off for their vaccination appointments if the appointment is within working hours, plus paid sick leave if they’re feeling unwell post-vaccination.

What do the unions say?

While they support workers getting vaccinated, unions have expressed concern over private employers being able to mandate them.

In a joint statement this week, the Australian Council of Trade Unions and the Business Council of Australia called on national cabinet to ensure cases of enforced vaccinations comply with public health orders.

“Employers and unions recognise that for a small number of high-risk workplaces there may be a need for all workers in a workplace to be vaccinated to protect community health and safety,” the statement said.

“These are serious decisions that should not be left to individual employers and should only be made following public health advice based on risk and medical evidence.”

What if a worker objects to getting vaccinated?

In the case of a worker not wanting to get vaccinated, Mr Farouque said their reasoning would be crucial to their case.

“The quality of the reason why somebody says they can’t get vaccinated is important,” he said.

For example, a worker with a pre-existing medical condition that prevented them from getting vaccinated might be required to present their medical information so the validity of their claim could be assessed, including whether the individual risks of getting vaccinated outweighed their risk of catching COVID-19.

If so, an employer would have to consider whether other measures could be put in place to allow that employee to continue to work without getting vaccinated, such as mandatory mask-wearing and remote work.

But if a worker simply didn’t want to get vaccinated, an employer could potentially dismiss them if the risk of catching or spreading COVID-19 in that workplace was high enough.

What will happen next?

A number of these cases will most likely go to the courts. But Mr Farouque said that as the vaccine rollout accelerates, the nature of the discussion is likely to change over the coming months.

He noted that a lot of young people, for example, can’t get the recommended vaccine for their age group at this point in time, which impacts the debate around mandatory vaccinations.

“The federal government has failed in terms of delivering what has been promised to put people in this position,” he said.

At least 70 per cent of Australians are expected to be fully vaccinated by early November, and 80 per cent by mid-November, according to COVIDLive predictions. 

Around this point, Mr Farouque expects the debate to shift. 

“My feeling is that by the end of the year, this discussion is going to look quite different, because hopefully by then everyone will at least have access to a vaccine, which won’t cause concern for that group.”

8 min read
Published 14 August 2021 at 8:29am
By SBS News
Source: SBS