With COVID-19 vaccines rolling out, directors must ask themselves a critical question: can and should my business make COVID-19 vaccinations mandatory for staff and, potentially, suppliers, clients and customers?
As with many legal questions, there is no easy answer, principally because it requires consideration of your business and individual employee circumstances. Without a general principle, the higher the risk of COVID-19 transmission in the industry in which your business operates, the more likely management can reasonably assert for WHS reasons that a vaccination is part of a necessary risk-minimisation strategy and direct employees to be vaccinated.
Compelling staff to be vaccinated is not a new concept. Such mandates exist in the aged and healthcare sectors for flu and other vaccinations. But will this principle apply across every workplace for COVID-19? The decision in a looming case in the Fair Work Commission (FWC) on whether the Queensland aged care provider Ozcare unfairly sacked an employee for refusing to take a compulsory flu shot for health reasons should provide directors with guidance; as will the decision by Qantas to make COVID-19 shots compulsory for every employee, which has also attracted FWC attention. If the FWC Ozcare decision finds in the employee’s favour, why would a direction in respect of a COVID-19 vaccination be any different?
This answer, at least, is simple. While mandating a COVID-19 vaccination is not dissimilar to that of a flu vaccination, the WHS consequences of a COVID-19 infection in a workplace is far more severe (and that’s not mentioning potential stakeholder infection). This is why mandatory COVID-19 vaccinations, without a government mandate, will need to be considered by management and boards operating in all industries across Australia — not just healthcare, aged care, education, transport, quarantine or border control.
Directors have strict due diligence obligations under WHS laws to not only provide and maintain a safe workplace, but to monitor the health of workers and the conditions of the workplace to prevent illness or injury. Directors must do what they can to ensure the health and safety of workers. This means limiting exposure to COVID-19 where reasonably practicable.
A nationwide vaccination program will take directors into uncharted waters and the duty of care extends beyond employees to all stakeholders deemed “workers” under relevant safety legislation.
The health and safety management systems in your organisation should properly and effectively assess and mitigate COVID-19 infection risks. A vaccine is clearly a useful mitigation tool. For this reason, it is foreseeable a business will more readily be able to justify on genuine safety grounds the mandating of a COVID-19 vaccination program on a much broader scale than we currently see with flu. How and when this is done will require careful consideration, proper documentation and consultation, noting obligations exist for directors to ensure the business consults with workers on health and safety matters relating to COVID-19.
Arriving at a position on whether your business has the capacity to reasonably and lawfully mandate COVID-19 vaccinations is one thing. Dealing with the fallout of those who do not wish to comply is another.
It is readily conceivable some employees will push back against any direction to return to the physical workplace, either because fellow colleagues may not be vaccinated against COVID-19, or because of the company requirement they be vaccinated. There are legal and practical implications for staff who refuse to comply with a lawful and reasonable direction; and obligations on the business to balance these objections within the ambit of discrimination laws. Caution is key to ensure your company has a clear policy position and can lawfully justify and enforce directions to minimise legal risk.
In today’s highly scrutinised, compliance-driven environment, boards are required to confer with heads of risk, audit, legal and HR, and ensure the strategy of the business is underpinned by a comprehensive risk analysis and WHS framework.
COVID-19 is first and foremost a health issue. That is the policy position, to a greater or lesser degree, of all Australian governments, and that which former New Zealand Prime Minister Helen Clark, as co-chair of the Independent Panel for Pandemic Preparedness examining the global response to this pandemic, wants all countries to adopt. Business must accept that any strategy it adopts to meet its immediate operational needs will also need to dovetail with Australia’s public health policy. It will not be easy.
Christa Lenard is a partner at workplace relations law firm Kingston Reid.