More latitude for employers but no universal rule on mandatory COVID-19 vaccinations

With the COVID-19 vaccination rollout ramping up across Australia, mandatory vaccination within the workplace has been one of the hottest topics of discussion. Despite greater clarity being afforded to employers by way of recently released government guidance, decisions as to whether businesses are entitled to require that their employees be vaccinated against COVID-19 remain the responsibility of individual employers and hinge on multifaceted considerations. 

No universal mandatory requirement

Although employer groups continue to plead with the Morrison Government to legislate for mandatory vaccination and indemnify employers (particularly those providing access to vaccination in the workplace), following a virtual roundtable discussion with leaders from unions, employer groups and government held on 18 August, IR Minister and Attorney-General, Michaelia Cash, reiterated the Federal Government’s position that vaccination is free and voluntary, unless a state or territory public health order is in place.

Public health orders currently in force across Australia generally require employees in hotel quarantine and border control as well as workers in residential aged care facilities to receive the COVID-19 vaccination. Other examples include in NSW, where directives are in place for construction workers in certain areas to be vaccinated. In Queensland, employees of Queensland Health and the Queensland Ambulance Service are also subject to mandatory vaccination directives.

Outside of the limited circumstances in which vaccination is a mandatory requirement of employment under a relevant state or territory public health order, it will fall to an individual employer to determine whether they can lawfully implement a mandatory vaccination policy in their workplace, if they wish to do so. 

If an employer determines it to be necessary to implement a mandatory vaccination policy in their workplace, whether it will be considered lawful and reasonable to enforce will be assessed with reference to a series of criteria, including factors such as:

• whether the nature of the work is customer-facing (and providing essential goods and services);

• the extent to which the employee may interact with people with an increased risk of being infected with coronavirus (e.g. aviation and airports);

• whether the employee works with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care, aged care or disability services);

• whether the workplace is located within a designated ‘hot spot’ for community transmission;

• workplace health and safety obligations including whether social distancing is possible and/or suitable PPE is available; and

• whether an individual has a legitimate (medical) exemption preventing compliance with such a policy.

Even when an employer is satisfied that introducing a mandatory vaccination policy would be lawful and reasonable in their workplace, comprehensive consultation with employees will first be necessary and a suitable time period for compliance must be afforded, having regard to the availability and accessibility of vaccines.

Before an employer considers imposing disciplinary action, such as dismissal, for failure to comply with a mandatory vaccination policy, various matters must be weighed, including the employee’s reason for non-compliance and their evidence to support same, as well as the measures extended to the employee to prevent the outcome of dismissal being necessary.

In the last year the Fair Work Commission (FWC) has been called upon to evaluate these exact considerations in reference to a number of employees who were dismissed during 2020 for failing to comply with their employers’ mandatory flu (influenza) vaccination policies. In each instance, following involved deliberations, the FWC upheld the dismissals of a childcare worker and receptionist in an aged care facility (see our related article) and, most recently, a personal care worker (see our related article). Generally, in all cases, the Commission was satisfied that each employer’s mandatory vaccination policy was lawful and reasonable, that the employers had sought to implement their policies in a fair manner, and, that each employee had been given ample opportunity to comply with the policy, or supply appropriate medical evidence exempting them, before termination of their employment was considered.

Big employers flag intent to mandate COVID-19 vaccination

Qantas, an employer of more than 20,000 employees, has become the most recent large employer to confirm its plan to require all employees to be fully vaccinated against COVID-19. The mid-August announcement came after the Qantas Group received around 12,000 responses to a survey put to all staff, with approximately 75% of respondents supporting a requirement for all employees to be vaccinated, indicating they would be concerned if other employees in the workplace were not vaccinated. Employees supporting international services (e.g. repatriation and cargo flights, etc) are already subject to public health orders requiring vaccination.

Nearly 90% of the survey respondents were already vaccinated (or planning to be), with less than 5% being unwilling or unable to receive the vaccine. CEO, Alan Joyce, noted that, under the incoming policy, there would be “very rare” exemptions for those who are unable to be vaccinated for documented medical reasons. Front-line workers (being pilots, cabin crew, airport staff, etc) will be expected to meet a deadline of 15 November to be fully vaccinated whilst all other staff will have until 31 March 2022 to comply.

Earlier in the month, fruit processor, SPC, was the first large Australian employer operating outside of the obvious high-risk industries such as quarantine/border control, aged care and aviation, to announce it would require all employees (and visitors to its sites) to be vaccinated against COVID-19 by the end of November. While the AMWU has argued against the policy labelling the proposed timeline for workers to be fully vaccinated as “unrealistic”, SPC has stood firm, noting that all workers will be offered compensation via paid time off when required to receive their vaccinations, as well as special paid leave of up to two days for employees who become unwell after vaccination. In addition, consideration will be given on a case-by-case basis to workers with a pre-existing medical condition who are unable to receive the vaccine and cannot comply with the policy.

Encouragement & agreement endorsed as preferred approach

There is little doubt that certain employers will have a lawful right to mandate vaccinations in the workplace but consensus of the Federal Government, employer groups and unions is that the preferred option is to get as many employees vaccinated against COVID-19 as possible, voluntarily, through workplace cooperation initiatives. 

Recently, Australia’s Therapeutic Goods Administration (TGA) released information regarding communicating about COVID-19 vaccines, including setting parameters for parties – such as a business or employer – offering rewards to individuals who receive the COVID-19 vaccination. The TGA website indicates that, “under the 2021 permission, any party can offer valuable consideration (cash or other rewards) to people who have been fully vaccinated under the Government’s national COVID-19 vaccination program”, subject to a series of stipulations.

In this vein, substantial employer, Telstra, has introduced a $200 voucher to encourage employees to get vaccinated. Telstra has indicated the reward offer would run through to at least December 31, noting some people are not yet able to receive the vaccine, and it would be applied retrospectively to anyone who has already been vaccinated.

Elsewhere, ACTU Secretary, Sally McManus, has urged the Morrison Government to provide for paid vaccination leave for every worker, including casuals, by inserting it into the National Employment Standards (NES), which would allow employees to get the jab, and not suffer a financial penalty if they need further time off work to recover from any routine side effects. Some employers, including SPC mentioned above, have adopted the sensible and reasonable approach of allowing employees the paid time off work to receive the vaccination and travel to and from the appointment. Although there is not a specific type of leave that currently applies for employees receiving the vaccination, personal leave would be accessible to permanent (full-time and part-time) workers who experience side effects after having the jab (assuming they have such leave accrued and owing).

The Department of Health has also made free resources available, designed to assist employers to “promote COVID-19 vaccination to their employees” by respectfully encouraging voluntary compliance in those who are eligible and able to receive the vaccine.