With more high-profile organisations, such as the AFL, announcing vaccine mandates, the questions many businesses will be grappling with are: “Should we implement a mandatory vaccine policy, and how can it be done lawfully?”

And some employees will no doubt be asking: “Do I have the right to refuse to be vaccinated?”

Let’s start with the first question. Following a Commonwealth Government directive, States have introduced laws requiring residential aged care workers to be vaccinated. In SA, this direction was issued under the Emergency Management Act.

South Australia has also issued a direction mandating that people who work in a "healthcare setting" receive their first vaccine shot by 1 November, and the second vaccine shot within a month of the first. 

Other jurisdictions have introduced broader vaccine mandates. The Northern Territory for example has issued a direction mandating that workers across a range of public-facing industries have their first COVID-19 jab by 12 November and be fully vaccinated by Christmas Eve. Victoria has also mandated that workers who are scheduled to work outside their home must be fully vaccinated by 26 November.

It is possible that South Australia will also issue broader mandatory vaccine orders but at this stage, public health vaccine orders only apply to workers in the healthcare sector, meaning it is up to individual businesses in all other industries to decide whether to implement a mandatory vaccine policy depending on their operational requirements.

Under what circumstances can businesses legally mandate vaccines for workers?

All employers have legal obligations to create a safe workplace under the Work Health and Safety Act. Among an employer’s duty of care responsibilities is the obligation to provide and maintain “safe systems of work”.

Introducing a mandatory vaccine policy could be considered a legitimate measure to maintain a safe system of work, but there are caveats.

Is it reasonably practicable to implement a no jab, no work policy?

This really is the ultimate question, and if this whole issue could be distilled into one sentence, it would be this: Employers can legally implement a mandatory vaccine policy if it is considered a reasonable measure in the circumstances.

To evaluate whether a measure is reasonably practicable, an employer must consider things such as the degree of risk (eg the risk of contracting and transmitting COVID-19), the extent of the possible harm, and other available measures to protect the workforce.

With regards to mitigating the risk of COVID-19, vaccination is more invasive than other measures such as wearing a face mask and social distancing protocols, but it is also generally considered the most effective.  Another factor to consider is, depending on the nature of an employer’s operations, it might be reasonable to mandate the COVID-19 vaccine for employees working in some parts of an employer’s business and not in other parts (for example, an employer may have part of its business where employees have frequent contact with members of the public and other parts of its business where employees undertake their work in a relatively isolated environment).

In light of current medical evidence about the effectiveness of immunisation, and Government support in favour of vaccination, it would be appear that implementing a mandatory vaccine policy may be considered a reasonable measure under law, subject to some conditions. However, the COVID-19 situation is constantly evolving so employers will need to keep abreast of latest developments.

What if an employee has a genuine reason to not be vaccinated?

Any vaccination policy will need to have provisos to account for employees who may have legitimate reasons to not be vaccinated.

A mandatory vaccine policy may be a lawful and reasonable measure, but an unconditional mandate is not likely to be lawful.

A lawful policy may be one that enables employees to remain unvaccinated if they have supporting medical evidence.

In such cases, employers must have regard for the safety of employees who may be at greater risk of adverse reactions to the vaccine – their risk of harm from the vaccine may be equal to or greater than being infected with COVID-19.

If an employee has provided legitimate medical evidence for not getting the vaccine, it is likely that it would be unlawful to terminate their employment purely on the basis of a refusal to be vaccinated.

In circumstances where an employee has a proper basis for refusing to be vaccinated (for example they could suffer from anaphylaxis and this position is supported by a qualified general medical practitioner), employers will have to work out whether adjustments can be made to the employee’s duties, such as enabling a working from home situation if possible, or having a different workstation in the workplace (again, if possible depending on the nature of the work).

THE DUTY TO CONSULT WITH WORKERS ON VACCINE MANDATES

Employers that are planning to introduce a mandatory vaccine policy for employees should check what their applicable industrial instruments contain in relation to consultation obligations that need to be followed prior to any implementation of such a policy.

This is because a vaccine mandate in the workforce would be considered a “major workplace change” under standard Award and enterprise agreement consultation clauses, and employers will therefore have a legal obligation to engage in consultation with workers about such a change.

The Work Health and Safety Act also has provisions requiring consultation.

Typically, once an employer has made a “definite decision” to institute a major change, the employer needs to give written notice of the impending change to all affected employees, and employees (and their representatives, such as unions) need to be given a genuine opportunity to give their feedback on the proposed changes, which in turn need to be considered by the employer. Also, as part of the consultation process, the employer typically needs to:

• Explain the nature of the change
• Explain measures taken to mitigate any risks associated with the change
• Outline the expected impacts of the change on employees
• Indicate whether termination of employment is a risk if the change is implemented and an employee refuses to follow the procedures associated with that change.

Both employers and employees should be aware that consultation does not need to lead to agreement, but it does need to enable a genuine exchange of views. 

Employers that don’t follow a proper consultation process may expose themselves to workplace disputes. It is therefore critical that employers understand the terms of the enterprise agreement or relevant award with regards to consultation obligations, to ensure they are complying with their specific consultation requirements.

REFUSING THE VACCINE

Can a person be sacked for refusing to be vaccinated?

There is no clear answer on this yet, and each case will turn on its own facts.

There have been some unfair dismissal decisions relating to flu vaccines that provide some guidance, but they are far from definitive. These cases include Glover v Ozcare, Kimber v Sapphire Coast Community Aged Care, and Barber v Goodstart Early Learning. In all these cases, the unfair dismissal claim failed.

One of the key takeaways from these decisions was that in each case, the requirement that the employees be vaccinated was considered lawful and reasonable under the circumstances. However, they were all in the context of workplaces (aged care and child care) whose clientele were people regarded as vulnerable. 

A Supreme Court of NSW decision (Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320) on 15 October has also strengthened the position that vaccine mandates are valid, after the Court dismissed an appeal by 10 workers that public health orders requiring cohorts of employees to be vaccinated impinged on their rights to bodily integrity and freedom of movement.

In his judgment, Justice Beech-Jones said “so far as the right to bodily integrity is concerned, it is not violated as the impugned orders do not authorise the involuntary vaccination of anyone”.

While Justice Beech-Jones acknowledged freedom of movement may be curtailed by the order, the restrictions on movement were “the very type of restrictions that the Public Health Act clearly authorises”.

What if an employee is not dismissed, but feels they have been treated unfairly since refusing to be vaccinated?

A risk of implementing a mandatory vaccine policy is that it may give rise to general protections claims, namely that an employer took unlawful adverse action against an employee because the employee exercised a workplace right (for example, to make an enquiry in relation to the employer’s mandatory vaccine direction).

Adverse action may include a demotion, a transfer to a different position, not being offered a position or even dismissal.

If an employee makes a general protections claim, there is a reverse onus of proof on the employer to prove there was no unlawful reason for the taking of the alleged adverse action.

DISCRIMINATION

Under the general protections provisions of the Fair Work Act, it is unlawful to discriminate against an employee on the basis of attributes including disability, religion, gender, and race.

There are of course Federal and State anti-discrimination laws which also prescribe a number of other protected attributes.

These laws prohibit indirect discrimination as well as direct discrimination, which is important to consider in the context of mandatory vaccine policies, noting most discrimination claims in this context are more likely to fall under indirect discrimination.

What is indirect discrimination?

Indirect discrimination is when a requirement that applies equally to everyone results in some people being disadvantaged by virtue of their protected attribute. An example might be a wheelchair user not being able to attend a live music gig due to the venue not being accessible for wheelchair users.

With regards to COVID-19 vaccines, it may be discriminatory for example to adversely treat an employee who has a legitimate medical reason (such as a disability) for being unvaccinated. However an employer may be able to successfully argue that a specific discriminatory act (such as a mandatory vaccination direction) is reasonable to comply with safety obligations.

It will be interesting to see how the case law will develop in this area. In the meantime, the key takeaway is that the lawfulness of a vaccination policy will come down to the reasonableness of the policy in the circumstances, and the manner in which lawful procedures are being complied with in the implementation of the policy.

Early signs suggest that mandatory vaccine policies are likely to be lawful as long as there are appropriate caveats built in, applicable consultation obligations have been followed and the policy implementation is reasonably necessary taking into account the employer’s industry and operations.

INSURANCE SCHEME FOR ADVERSE VACCINE REACTIONS

The Federal Government  has introduced a no-fault insurance scheme, which came in to effect on 6 September, that provides compensation to eligible claimants who suffer an adverse reaction to a COVID-19 vaccine.

Claimants must be able to prove their adverse reaction was linked to the vaccine.

The no-fault scheme helps claimants avoid needing to engage in litigation where they seek to recover costs in connection with an adverse reaction to the COVID-19 vaccine.

To be eligible for compensation, claimants must:

• Have suffered both an adverse medical reaction and loss of income as a result of the adverse reaction
• Have suffered losses that amount to $5000 or more
• Suffered the adverse reaction no earlier than February 2021

The scheme will apply regardless of where a vaccine was administered, and will protect health professionals who administer the vaccine.

The Commonwealth funded scheme is being administered by Services Australia, and an expert independent panel will assess the claims.

For more information or to claim, visit www.health.gov.au/COVID-19-vaccination-claim-scheme    

The Therapeutic Goods Administration has been monitoring and recording adverse reactions to COVID-19 vaccines. Their statistics can be viewed here:

https://www.tga.gov.au/periodic/covid-19-vaccine-weekly-safety-report

PRIVACY ISSUES

Some employees may be concerned about their employer holding information about their vaccine status.

A person’s vaccination status is regarded as sensitive health information under the Privacy Act, and therefore afforded greater protection.

Businesses with a turnover of at least $3 million and Federal Government agencies are bound by the Privacy Act.

The Australian Privacy Commissioner Angelene Falk has advised that employers can lawfully collect employees’ vaccination status information, but only if it is reasonably necessary for an employee’s functions and activities, and the employer obtains informed consent from employees.

In all likelihood, policies and practises designed to protect against COVID-19 would be considered reasonably necessary for employees to perform activities or functions.

Employers covered by the Privacy Act will need to be transparent about how the information will be handled and kept secure, and the reasons for collecting the data.

Employers must also obtain voluntary consent from employees before collecting such information.

What if an employee does not give consent to their vaccination status being collected?

An employer should take all practicable measures to obtain consent from workers to collect their vaccination status. If some workers refuse consent but the employer is still determined to ensure all employees disclose their vaccination status, they may consider the following:

1. Assess whether an employee’s refusal to consent to their vaccination status being recorded jeopardises the employer's obligations to maintain a safe workplace and manage the risk of COVID-19. If so, an employee's non-consent may be at odds with the employer's lawful and reasonable vaccine directive. What employers cannot do is coerce workers to disclose health information or threaten dismissal for non-consent. But employees may face consequences under their particular Award or agreement if they are in breach of a lawful and reasonable workplace direction. There has not yet been any legal decisions weighing up competing concerns of workplace safety obligations and privacy obligations, so it is a space to watch. 

2. The Privacy Act makes it clear that employers should take a “data minimisation” approach to collecting data, meaning they can only collect the minimum amount of data necessary to provide a safe workplace. The Privacy Commissioner has recently provided advice that employers could consider alternative solutions that don’t require collecting or storing information. For example, employers may be satisfied with an arrangement where they merely sight a person’s vaccination status, without actually recording it.

Employers should also be aware of any public health orders that provide direction on the collection of employee vaccination information. A workplace's obligations under a public health order would generally override obligations under the Privacy Act if they were in conflict.

CONCLUSION

Although it is early days, the signs tend to point towards vaccine mandates in workplaces being lawful, and it is likely that we will see more workplaces introduce compulsory COVID-19 vaccination policies. We may also see more public health orders mandating vaccines for a broader section of the workforce.

With increased implementation of mandatory workplace vaccination policies, it is also expected that there will be more challenges to the legitimacy of such vaccine mandates and other public health measures, including (possibly) on constitutional grounds, and such cases may clarify the lawfulness of various health orders.

Another space to watch is workers compensation. While in South Australia, we have not (yet) had a judgment in connection with COVID-19, either on the basis of a physical or psychiatric injury, it would seem that this is a matter that is likely to need to be considered by the South Australian Employment Tribunal at some point in the future.

Ultimately, there are competing interests at play, but Federal and State Governments have made it clear that protecting the safety of the workforce and general community is the overriding priority, and the outcomes of various legal challenges so far seem to support this position.

The Law Society acknowledges the the CPD session "Calling the Shots", presented by barrister Matoula Makris, which assisted the development of this article.