Can employers force their employees to be vaccinated against COVID 19? The answer depends on the business of the employer, the industry and the employee’s role.
Author: Farrah Motley, Legal Principal of Prosper Law.
The context of COVID-19 vaccinations in the workplace
As the economic and other impacts of the pandemic worsen, Government and employers across Australia appear to be taking a more hardline approach to ensuring employees are vaccinated. The former suppression approach to the pandemic has made way for an approach that aims to live with the virus in a managed way.
Despite so much uncertainty, what is clear at this point is that there seems to be an uneasy interface between workplace health and safety obligations and the duty to ensure a safe workplace, on the one hand, workers’ compensation issues and claims of discrimination and unlawful directions on the other.
Businesses have an important role to play in encouraging the take-up of vaccines and making it easy for workers to get vaccinated. Whether Australian employers can direct employees to be vaccinated is a complicated issue.
The law relating to COVID-19 vaccinations in the workplace
The central question is whether an employer’s direction to its employees to get vaccinated is lawful and reasonable. All employees have a legal obligation to comply with the lawful and reasonable directions of their employer.
What is lawful and reasonable continues to change, particularly in light of the transmissibility and serious health impact of the delta variant of COVID-19.
However, there are some guiding principles to help employers figure out whether a direction to an employee to get vaccinated against COVID-19:
- a direction will be “lawful” if it is not prohibited by law, even if the law does not require an employer to direct an employee to be vaccinated
- a direction may be necessary for the employer to appropriately discharge their legal duty (for example, to ensure the workplace is safe)
- what is “reasonable” will depend upon all the circumstances of the employee, the workplace, the employer and the community
Employees have a legal obligation to comply with their employer’s directions if those directions are lawful and reasonable. An employee who fails to do so may be subject to disciplinary action, which may include being dismissed from their employment.
The Australian Government’s Position on Mandating COVID-19 Vaccines
On 6 August 2021, the Australian National Cabinet met. At that meeting, National Cabinet discussed the issue of employers seeking to mandate that employees be vaccinated against COVID-19.
As part of the announcement, Prime Minister Scott Morrison explained that official government advice is that there may be situations where it is reasonable for employers to require an employee to be vaccinated. This advice included considering issues such as the reasonableness of any employer direction and the application of anti-discrimination laws.
On 28 June 2021, the Australian Federal Government announced that COVID-19 vaccinations would be made mandatory for employees in the residential aged care industry. All persons employed in aged care must receive their first dose of one of the COVID-19 vaccines by September 2021.
The Prime Minister acknowledged that ultimately employers need to consider these issues and make their own decisions in a way that is appropriate for their workplace. Unfortunately, the Prime Minister’s advice did not provide Australian businesses with any more certainty and simply referred to existing laws, which do not provide businesses with concrete guidance.
The Prime Minister also stated, in relation to concerns raised by the Australian business community that they may be subject to claims from employees who contract COVID-19 from their workplace:
…what we discussed today was that the challenge faced by a business who fears that they may be subject to an action from an employee who may become ill as a result of COVID and may seek to bring an action against that employer on the basis that they did not put a mandatory requirement on that workplace… the advice I have received is that workplace health and safety regulators in the states can provide a statement of regulation intent that a business that does not mandate is not in breach of workplace health and safety laws. So, a protection can be provided to businesses through that process…
Can Employers Force Their Employees to Be Vaccinated Against COVID-19?
While the Australian Government’s policy is that receiving a vaccination is voluntary, it aims to have as many Australians vaccinated as possible.
There are limited circumstances where an employer may require their employees to be vaccinated. Whether an employer can require their employees to be vaccinated against coronavirus is highly dependent on the individual matter. Businesses must take into account their workplace and each employee’s circumstances. The relevant factors an employer should consider when deciding whether to direct and require that its employees get vaccinated against COVID-19 include:
- Whether a specific law (such as a State or Territory public health law) requires an employee to be vaccinated (see Legislation and public health orders requiring vaccination against coronavirus)
- 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).
- Further considerations may include whether employees 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 get their own legal advice if:
- They’re considering making coronavirus vaccinations mandatory in their workplace; or
- They operate in a coronavirus high-risk environment (for example, health care or meat processing).
The table below sets out (in basic terms) the likelihood that a direction by an employer is reasonable in relation to four tiers of employees:
- Tier 1 – employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control)
- Tier 2 – employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care)
- Tier 3 – there is an interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services)
- Tier 4 – employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home)
What Is Lawful And Reasonable Direction?
Whether a direction to employees to get vaccinated is lawful and reasonable will vary depending on the circumstances. For example, what is reasonable in the context of a business that involves extensive physical and close interaction, such as an aged care facility, will differ. ‘Reasonableness’ is not a one-size-fits-all approach.
Various factors may impact the lawfulness and reasonableness of a particular direction, including:
- The employer’s workplace health and safety obligations (for instance, to its other employees, contractors and visitors);
- The employer’s Common Caw duty of care;
- Whether the direction constitutes discrimination of the sort prohibited by Australia’s anti-discrimination regime;
- Human rights legislation such as Victoria’s Charter of Human Rights and Responsibilities (depending on the jurisdiction and the nature of the employer);
- Any relevant provisions in an applicable employment contract, modern award or enterprise agreement;
- Any relevant consultation obligations;
- The availability of reasonable exemptions to the direction, and the availability of effective alternatives to vaccination (such as the use of personal protective equipment); and
- Whether the employee can perform the inherent requirements of their position without being vaccinated.
Mandatory COVID 19 Vaccinations for Employees
In some circumstances, it may be obvious when it is a lawful and reasonable direction in relation to the vaccine. For example, where employees have close contact with vulnerable classes of people, such as in direct care and healthcare roles.
However, for the vast majority of Australian businesses, the determination will not be this clear, and care will need to be taken.
The landscape in relation to the vaccine could change rapidly. It is vital for employers to continue to be vigilant in monitoring updates and guidance from relevant government bodies (like the guidance already provided by the Fair Work Ombudsman and Safe Work Australia), as well as any changing law in this area.
Mandatory COVID-19 Vaccines For Employees and Anti-Discrimination
There are many laws in Australia which prohibit discrimination and they also apply to an employee-employer relationship.
In Australia, anti-discrimination laws include:
- Sex Discrimination Act 1984 (Cth) (‘SDA’)
- Disability Discrimination Act 1992 (Cth) (‘DDA’)
- Age Discrimination Act 2004 (Cth) (‘ADA’)
These laws make it unlawful to discriminate on various grounds, including on the grounds of pregnancy, disability and age. Anti-discrimination law applies in many areas of public life, including in employment. ‘Disability’ can include past, present, future and imputed disabilities.
COVID-19 does not negate or override ant-discrimination law.
COVID-19 and Anti-Discrimination Law
If an employer seeks to put in place a black-and-white, one-size-fits-all strict rule or condition that mandates COVID-19 vaccinations for all employees, including people with disabilities, medical conditions or pregnant employees, may fall foul of anti-discrimination law.
Such a rule may be indirect discrimination against those classes of employees.
Even if an employer has a policy in place which mandates COVID-19 vaccines for all employees, but does not enforce it against particular classes of employees who are protected under anti-discrimination law, this may still be classified as indirect discrimination. Therefore, any policy an employer seeks to put in place to require employees to be vaccinated against COVID-19 must take into account anti-discrimination law and avoid applying a one-size-fits-all approach.
There may, however, be circumstances where it is reasonable to direct an employee to get vaccinated against COVID-19, even though that employee has attributes that are protected under anti-discrimination law. Those circumstances may include:
- the inherent requirements of the employee’s role require that they be vaccinated against COVID-19
- the employee is or may suffer from an infectious disease (being COVID-19)
- the employer is unable to make reasonable adjustments for an employee with a disability because it would place unjustifiable hardship on the employer
The employer bears the burden of proving that any direction to an employee (who has a characteristic that is protected under anti-discrimination law) to be vaccinated against COVID-19 is reasonable.
What Happens If Employees Refuse Vaccination Even After Lawful And Reasonable Direction?
If an employee refuses to be vaccinated against COVID-19 (contrary to a specific law, agreement or contract that requires vaccination, or after receiving a clear and repeated lawful and reasonable direction), 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 or a religious belief that would prevent them from receiving the COVID-19 vaccine),
the employee and their employer should consider whether there are any other options available instead of vaccination. This could include alternative work arrangements. Find out more about alternative working arrangements.
Whether disciplinary action is reasonable will also depend on the circumstances.
If an employee refuses a direction to be vaccinated, it’s unlikely that the employer can stand down the employee. Stand down is only available to Australian employers in certain circumstances. Learn more about standing down employees by reading about stand downs.
Further, employers generally don’t have the power to suspend employees without pay, unless an enterprise or other registered agreement, award or employment contract allows them to.
We encourage employers to discuss options with their employees, depending on the circumstances of their individual workplace. Learn more about consultation and cooperation in the workplace.
What Disciplinary Action Can Employers Take If The Employees Refuse To Get Vaccinated?
An employer may be able to take disciplinary action, including termination of employment, against an employee for refusing to be vaccinated if the employee’s refusal is in breach of:
- A specific law; or
- A clear and repeated lawful and reasonable direction requiring vaccination.
Whether an employer can take disciplinary action will depend on the individual facts and circumstances. To work out if and how an employer can take disciplinary action, employers should consider the terms, obligations and rights under any applicable:
- Enterprise agreement or other registered agreement
- Employment contract
- Workplace policy
- Public health order
Employers should also consider getting legal advice in these situations.
Employers don’t otherwise have the power to suspend employees without pay unless an enterprise or other registered agreement, award or employment contract allows them to.
Employees have various protections against being dismissed or treated adversely in their employment. Employers should make sure that they follow a fair process and have a valid reason for termination, or it may breach unfair dismissal or adverse action laws under the Fair Work Act.
Regardless of the business you operate, whether or not you can lawfully and reasonably require an employee to be vaccinated against COVID-19 is a delicate and sensitive issue and should be handled as such.
It is also not a simple matter and unfortunately for Australian businesses, the regulatory environment does not provide any clear comfort for businesses that want to direct employees to get vaccinated against COVID-19.
Want to continue reading? Check out our article How to Ensure Your Social Media Posts are legally Compliant.
Farrah Motley | Legal Principal
PROSPER LAW – Australia’s Online Law Firm
M: 0422 721 121
A: Suite No. 99, Level 54, 111 Eagle Street, Brisbane, Queensland Australia 4000