Can Employers Make Workplace Vaccination Mandatory?

With COVID-19 numbers escalating in most of the country due to the Delta strain, the government’s priority has shifted from suppression to ensuring as much of the population as possible is vaccinated. And while Mr Morrison might privately prefer vaccination to be mandatory, he has publicly committed to keeping it voluntary. But what about businesses?

Can they make vaccination a necessary condition of employment?

The short answer -

If you’re pushed for time, the short answer is probably not. In the words of the Fair Work Ombudsman, “In the current circumstances, the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus.”

Nonetheless, you will likely have read about Victorian fruit-canning company SPC announcing compulsory vaccination for employees, followed shortly by none other than Qantas.

Not a done deal -

If they can do it, what’s to stop others? Well, for one thing, it’s by no means a done deal for those two. SPC in particular could be on shaky ground, with the possibility of legal action by the Australian Manufacturers Workers Union, which has criticised the lack of consultation.

Qantas appears to be in a stronger position given the nature of its business and the fact that the majority of its employees reportedly support the move.

The reality, however, is that SPC and Qantas are test cases, the results of which will no doubt offer a clearer indication of where the land lays in this area.

A legal requirement for some -That said, there is a small number of employees for whom vaccination is a legal requirement. The exact details vary by state and territory but generally speaking they’re the ones you would expect, such as healthcare, quarantine, and residential aged care workers.For all other employers, the Fair Work website states that vaccination against coronavirus can only be mandated if it’s both lawful and reasonable to do so. But what exactly does this mean?

Lawful -The lawful side of the equation is the more straightforward. The two main considerations here are as follows:

• Most workplaces are covered by either an award, enterprise agreement or another registered agreement. All awards and enterprise agreements have a consultation clause requiring employers to consult with employees over the implementation of significant workplace changes. (This is where SPC could potentially come unstuck)

• Should an employee be unable to be vaccinated for medical reasons, terminating their employment would be illegal under anti-discrimination laws regarding disability.

Reasonable -As you might imagine, what constitutes ‘reasonable’ is more open to interpretation. The Fair Work guidelines recommend thinking of workplaces belonging to one of four tiers:

• Tier 1 - where 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 - where 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 - where there is 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 goods and services).

• Tier 4 - where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

Qantas has good grounds for considering itself to belong in tier 1 (i.e. the tier with the greatest ‘reasonable’ claim for mandatory vaccinations). However, that becomes complicated by the fact that many of its employees (e.g. back office staff) aren’t required to interact with people with a high-risk of infection, meaning a blanket vaccine mandate might not be considered reasonable after all.

The long and short of it -In conclusion, the decision to make vaccination mandatory for your employees isn’t one to be taken lightly, and certainly not without getting professional advice first.

As ever, Streamline and our legal advisors are on hand to help you navigate this difficult area should you decide it’s the right move for your business.