Background:
Currently there is a major focus on the rights and obligations of employers to consider mandating Covid-19 vaccinations for their workforce (particularly those in Sydney and Melbourne). The situation evolves constantly. With the recent announcement that SPC has imposed a mandatory Covid-19 vaccine regime on all manufacturing plant workers and pertinent comments from the Prime Minister and Cabinet, all businesses need to reconsider what is right for their workplace.
What This Means For Employers:
There is no easy and clear right for employers to direct or mandate a vaccination (other than where the industry is subject to a Public Health Order). It is a case-by-case decision for each employer, looking at their particular workplace. Whereas previous case law warned against mandatory vaccination for workers, as the Covid-19 landscape in Australia evolves, there is pressure on business to revisit this topic.
We now consider that employers in some industries may be able to lawfully and reasonably direct employees to be vaccinated as a condition of entry into the workplace where:
- Employees have a high degree of interaction and close contact with customers/public;
- Employees have a high degree of workplace interaction with their peers;
- Employees have a high degree of interaction with vulnerable, sick, elderly or unvaccinated individuals;
- The work involves close physical proximity or a degree of elevated risk of transmission; and/or
- There are no other reasonable avenues available to the employer to protect the worker, other workers and/or customers.
Where an employer believes the above circumstances apply to their business, they may be able to give a lawful vaccine direction (subject to terms of any employment agreements, Awards and enterprise agreements). Exceptions will need to be made for those with medical conditions and any such decision should not be taken without appropriate consideration and advice.
What Types of Industries would Mandatory Covid-19 Vaccination Policies be relevant?
In our view, industries such as health care, education, childcare, retail, hospitality, beauty, travel and gyms are likely to be some of the first industries where mandatory vaccination policies may be deemed lawful. In these environments, workers have a high degree of physical contact with others, cannot perform their work remotely and the risk of infection is higher than other workplaces.
What If An Employer Doesn’t Mandate Vaccinations?
If an employer operates a ‘high risk’ workplace and does not give a vaccine direction, the employer needs to consider whether they have a duty of care to other workers and customers to do so.
All employers have obligations to provide a safe work place. If mandatory vaccinations are not directed, employers need to consider whether this places workers and customers/third parties at an unacceptable risk and whether there are other mitigation options available. If there aren’t, it may be that employers have breached their WHS obligations by failing to implement a reasonable vaccine directive. Again, this is not a clear cut decision.
What are the risks for an employer who gives a mandatory Covid-19 direction without proper basis?
If a mandatory vaccination policy is implemented and subsequently found to be unlawful or unreasonable, it is possible that an employee may successfully bring a workplace claim (such as unfair dismissal, breach of contract, discrimination etc). Unfortunately, there is a lack of current case precedent or legislative direction that we can readily rely upon. Accordingly, each business will need to make their own risk assessment as to what is likely to be reasonable for their workplace.
So, what’s the bottom line?
Employers in front-line industries who have high contact with the public , or who operate in work environments that cannot ensure the safety of workers through other means, should obtain professional legal advice as to whether the mandating of employee vaccinations may occur.
Importantly, each workplace is different and employers should not rely on comments from Members of Parliament as points of law nor precedent – such comments are merely helpful to indicate the constant shift of public understanding in this space.
Above all, Employers should always ensure that they are complying with current public health orders and workplace health and safety requirements. Please get in touch with our expert team for guidance on this topic.