Vaccines as a workplace issue

As Australia’s vaccine rollout proceeds, many employers are grappling with the question of whether they can launch vaccination policies in the workplace. Here we assess the picture, which is a grey area for boards and employers.

It’s an issue that is increasingly becoming a matter of concern for many employers – whether they should consider a workplace vaccination policy or program for staff as part of Australia’s nation-wide COVID-19 vaccine rollout.

In early April the government announced it was reviewing the vaccination program rollout, however to date more than 1.42 million vaccine doses have been administered across the country.

Lawyers warn that because the federal government has declared the vaccine rollout as voluntary, the options for employers are limited.

Under the Australian Government’s COVID-19 Vaccination Strategy, about 678,000 healthcare workers – including frontline healthcare workers, quarantine and border workers, and residential aged care and disability residents and staff – were due to be vaccinated in phase one, with vaccine doses available at 30-50 hospital sites across Australia. This will be expanded in further phases to include workplaces, residences, mass vaccination clinics and general practices.

 “The Government may consider (more) workplace COVID-19 vaccination programs in the future, however presently the focus is on delivering vaccinations to vulnerable priority groups through state and territory vaccination clinics, general practices and GP-led respiratory clinics,” a spokesperson told the AICD.

Beyond frontline workers, however, the picture is unclear. “There are a lot of public messages out there that suggest it is unwise at this point to set up a mandatory vaccine program in the workplace,” Charles Power, Partner, Workplace Relations and Safety, at Holding Redlich told the AICD in an interview.

“Currently, it is too uncertain for most employers to implement mandatory vaccinations for new and existing staff. But it might be doable in sectors where it is justified by risk – for example, workers involved in the mandatory hotel quarantine of overseas travellers,” he said.

A grey area for business

Employers have called for more leadership on the workplace vaccination issue. Business Council of Australia CEO Jennifer Westacott says while this is a grey area for business, large firms are mostly in agreement with a voluntary system, but certain sectors such as aviation need more clarity.

“Overwhelmingly, the big companies I talk to are happy with a voluntary system providing we're really clear about the timing and we're going to step up and make sure people have the right information in the business community.”

“Where I think there’s [more] to sort through is for airlines and airports that are in contact with international travel. If you don't allow Qantas, for example, to mandate that its international customer facing team have to be vaccinated … then the quarantine system loses integrity again. I think that's an area we've got to sort out pretty quickly.”

Small business groups are also raising questions. Chief executive of Council for Small Business Organisations Australia (COSBOA) Peter Strong has aired concerns that under work health and safety laws, workers could be entitled to workers’ compensation if they contract COVID-19 while at work.

He says COSBOA is in discussions with Safe Work Australia about employers’ legal obligations in relation to COVID-19, and there is still a lot that employer groups do not know at this stage.

Overseas, an international survey of employers conducted by Gartner shows that less than 10 per cent of employers said they will ask staff for proof that they have had the vaccine. And nearly half of large global firms surveyed had no plans to track the vaccine status of staff. More than a third will ask staff to self-report.

Safe Work Australia guidance

Safe Work Australia has issued vaccine guidelines for workplaces that encourage any business considering a vaccination policy or program to seek advice from the Workplace Health and Safety regulator, the Fair Work Ombudsman, employer organisations or other legal services before implementation.

The guidelines state that vaccines have not been made mandatory in any industry. “There are currently no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against COVID-19.”

Public health experts such as the Australian Health Protection Principal Committee have not recommended a vaccine be made mandatory in any industries. Employers do still have a duty under the model Work Health and Safety (WHS) laws to “eliminate or if not possible, minimise, the risk of exposure to COVID-19 in the workplace … and vaccination should be considered one way to do so in the context of a range of COVID-19 control measures.” While employers can encourage workers to get a COVID-19 vaccination, the guidelines state that it is unlikely they will need to make vaccination mandatory to comply with these laws.

Employers must also comply with any state and territory public health orders that require some workers, such as those considered to be high-risk workplaces, to be vaccinated. Employers can help workers find out more information about the vaccines by directing them to the Department of Health website.

Vaccine rollout not a silver bullet

At the AICD’s Australian Governance Summit in early March, Neville Power MAICD, Chairman of the National COVID-19 Commission Advisory Board, urged caution on the part of employers.

“Businesses should avoid, as much as possible, turning vaccination into a workplace issue. I know there have been some concerns about employer liability and whether employees can be required to be vaccinated. I think this issue is overblown. Australians have a historically high vaccine take-up rate and most of us will want to be vaccinated.”

As the vaccine rollout takes place, the domestic situation will normalise and the business community can have more confidence that border lockdowns won’t be needed, he said. However, business should continue to keep up COVID safe practices such as physical distancing in their workplaces. “The vaccine rollout offers hope to fast-track recovery, but it is not a silver bullet.”

It will also be important for businesses to have workforce communication on vaccines up and running quickly, and to encourage vaccinations by engaging with employees, supply networks, customers and the broader community. “I urge all business leaders to get behind this approach and do everything they can to communicate and encourage people to get the vaccinations as soon as they are able.”

Untested Waters

These are untested waters for Australian employers, says Charles Power whose legal practice in Melbourne has received many inquiries from employers. The Fair Work Ombudsman has also reported receiving many enquiries from employers.

When considering whether issuing direction on COVID-19 vaccination is reasonable, Power says employers need to consider:

• the nature of the work being performed
• the nature of the clients and other stakeholders
• the ability to mitigate any safety risks
• whether or not the employee can perform the inherent requirements of the role without being vaccinated
• anti-discrimination law.

“As an employer, you can encourage staff to receive the vaccine, but you can’t threaten them with any disciplinary sanction or adverse action if they don’t receive it,” says Power. It may also be problematic for employers to instruct the staffer to work from home. “If you direct an employee to work from home because they have not been vaccinated, they might bring an unfair dismissal claim.”

Similarly, if employers collect personal medical information from staff about whether or not they have received the vaccine, they need to be careful in terms of privacy, warns Power. Employers can only gather this information in very limited circumstances, with staff consent and with a privacy statement to employees as to how the material will be handled and why it is needed, with secure storage of all the information so it can’t be compromised.

The Office of the Australian Information Commissioner has advice for employers on the privacy obligations to staff. “You must only collect vaccination status information if the employee consents and the collection is reasonably necessary for your functions and activities, unless an exception applies,” the guidance states.

Employer liability

Under current workers compensation laws, if a staffer does contract COVID-19, employers will not be prosecuted for not having introduced a workplace vaccine policy or program. They may, however, trigger workers’ compensation obligations to make the workplace COVID-safe and to ensure that the infected person does not infect anyone else, he says.

In NSW, the workers’ compensation laws have been softened to make it easier for infected workers to claim workers’ compensation without having to prove the virus was contracted in the workplace, says Power.

NSW workers compensation legislation provides that when employees in certain industries (including restaurants, retail, libraries) contract COVID-19, it is presumed (unless the contrary is established) the disease was contracted in the course of their employment, which means it is covered by workers compensation insurance.

If staffers refuse to get a vaccination?

There are no test cases in legal terms for where an employee refuses to have a COVID-19 vaccination, says Power. However there are other workplace cases where staff have refused to comply with an employer requirement that they believe unduly intruded on their personal freedoms.

In one case, Jeremy Lee vs Superior Wood, a sawmill worker refused to undergo a fingerprint scan for the time and attendance system. He was concerned over privacy implications and was dismissed for refusing to comply, however he later won his own unfair dismissal case.

In another example, a recent Fair Work Commission case was instigated by a childcare worker in Queensland who claimed she was unfairly dismissed from her workplace after she refused to get the flu shot. The case considered whether the childcare centre fired the worker on “lawful and reasonable” grounds, given her refusal to get vaccinated was not due to a medical condition.

In what is expected to become a landmark case, an employee for aged care provider Ozcare who was placed on unpaid leave, and later considered to be terminated after she refused to get vaccinated, may now file her unfair dismissal complaint, the Fair Work Commission ruled.

The commission says that when considering workplace vaccination requirements, employers should take into account:

• 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).

Other considerations may include whether staff have a legitimate reason for not being vaccinated (for example, a medical reason) and how protections for employees under anti-discrimination laws may apply. Employers should obtain their own legal advice if:

• they are considering making coronavirus vaccinations mandatory in their workplace, or
• they operate in a coronavirus high-risk environment (for example, health care or meat processing).

What happens if an employee refuses to be vaccinated?

Fairwork advises that if an employee refuses to be vaccinated an employer should, as a first step, ask the employee to explain their reasons for refusing the vaccination.

If the employee has provided a legitimate reason for not being vaccinated (for example, the employee has an existing medical condition), the employee and their employer should consider any other options available. See Alternative working arrangements during coronavirus.

Whether disciplinary action is reasonable will depend on the circumstances. For more information on disciplinary action for refusing to be vaccinated, see Can an employer take disciplinary action if an employee refuses to get vaccinated?

For more information about when, and how, vaccinations are being rolled out, including information about priority groups (and industries) and phases for availability, visit the Australian Department of Health.