Aside from the clear community risk presented by COVID-19 and the according public good served by higher vaccination rates, there are important business reasons for employers to consider mandatory vaccination policies, writes Joel Zyngier.
There is a growing groundswell towards mandatory COVID vaccination in many Australian workplaces; SPC was at the vanguard, followed by aviation stalwart Qantas, and now numerous other Australian businesses are exploring their options in this area. Many employers continue, however, to be unsure of their legal rights and obligations.
Employers need to assess which of their workers can be given lawful and reasonable directions to be vaccinated, how exemptions are to be applied and the means of implementing the policy (including consultation). As a starting point, employers may wish to consider those approaches of SPC and Qantas that have been reported in the media. They can also refer to the Fair Work Ombudsman’s guidance released on 12 August 2021.
Aside from the clear community risk presented by COVID-19 and the according public good served by higher vaccination rates, there are important business reasons for employers to consider mandatory vaccination policies. First and foremost are employers’ duties under work health and safety (WHS) legislation to, so far as reasonably practicable:
- Eliminate risks to health and safety (including identifying and controlling risks to health or safety associated with potential exposure to COVID-19).
- Provide and maintain for workers a working environment that is safe and without risks to health (including the risk of COVID-19).
- Monitor the health of workers.
Workers have duties under WHS laws to take reasonable care for their own health and the health and safety of other workers who may be affected by their acts or omissions. They also have a duty to comply with their employer’s lawful directions in respect of safety matters.
The workplace safety risk presented by COVID-19 differs from workplace to workplace and even for different workers within a business. The risks will be greater where there is the necessity for physical attendance at the workplace where workers are working in close proximity to each other. This is particularly so for the Delta strain; social distancing at work and personal protective equipment are of limited effectiveness as measures to protect health and safety.
Further, it is self-evident that a COVID-19 outbreak would present a significant business risk for most employers. If a business is partially or wholly shut down due to a COVID-19 outbreak, it would have significant detrimental impacts on the business and employees. This provides a commercial foundation for implementing a mandatory COVID-19 vaccination policy.
To protect workplace health and safety and for sound commercial reasons, it is clear that many employers (such as SPC and Qantas) will be able to give reasonable directions requiring employees to be vaccinated if they wish to continue working. The Fair Work Ombudsman’s four tiers of work type may assist with the assessment but employers are advised to take specialist legal advice before introducing such a policy. Employers must also be mindful of discrimination and privacy laws. They should also comply with obligations under applicable awards, enterprise agreements and WHS legislation to consult with affected workers when introducing the policy, although in most cases they would not need to consult about whether to introduce the policy.
As a profession, lawyers have a key role in helping Australian businesses navigate these challenging, uncharted territories through to a safer Australia. Let’s grasp the wheel with firm hands.
Joel Zyngier is a principal at Gilchrist Connell.