With the spread of the Delta COVID-19 variant across Australia’s eastern seaboard showing no signs of abating, there is a pressing need for organisations to make clear choices to aid their return to work efforts – and accelerate the path to broader societal and economic recovery – by supporting COVID-19 vaccination, write John Tuck and the Honourable Graeme Watson.
Encouraging, rather than coercing, employees to get vaccinated will likely be favoured by most employers. But if this is insufficient, what options do employers have open to them? What are the objections to mandatory vaccination policies in the workplace? And, more importantly, can these issues be addressed both from a legal and an ethical perspective?
In late July 2021, the Australian federal and state governments agreed to a four-stage National Plan to open up the economy and the broader community, and to live with COVID-19 for the foreseeable future.
The final stage will be reached when more than 80 per cent of the population aged 16 and over is fully vaccinated. Encouragingly, the take-up rates – particularly in NSW – suggest we will reach these targets in 2021.
Over recent weeks, we have observed that community sentiment has noticeably shifted to an acceptance that Australia needs to move from an “aggressive suppression” strategy to one where it will be necessary to live with the virus circulating, managing this risk in part by high levels of vaccination and ongoing non-pharmaceutical interventions (NPI).
Vaccines provide a way out from the deleterious impacts of ongoing lockdowns, and, importantly, they offer individuals protection from hospitalisation and death from COVID-19.
Expert opinion also suggests it is likely that vaccines offer some collective protection by significantly reducing transmission.
With the federal and state governments either unwilling or unable to mandate wide-ranging vaccination requirements, many employers are addressing the question of what their organisations should be doing to support this critical community effort, and how they can manage the risk the Delta COVID-19 variant presents not only to their employees but to their business, customers, clients, suppliers, and the public at large.
Fortunately, most adults now have access to an approved vaccine. It also seems likely that the virus will still be circulating throughout some parts of Australia for the foreseeable future.
These factors impel a consideration of the need to strike a balance between individual freedoms and the common good.
What are the principal issues that need to be addressed in the context of mandating vaccination of employees?
Would it be a lawful and reasonable direction to require employees to receive a vaccine as a condition of employment?
In simple terms, all employees are under a contractual obligation to observe the lawful, reasonable directions of their employer.
For a direction to be lawful, it must be consistent with any employment contract, award or industrial agreement, and any Commonwealth, state or territory law that applies (e.g. an anti-discrimination law). This is well-established law in Australia.
Importantly, a direction need not be required by law in order to be lawful. The test is that the employer’s direction does not involve any contravention of a law, industrial instrument, or employment contract.
By the same token, the direction may well be necessary in order to enable the employer to discharge its legal obligations.
It follows from the foregoing that an employer does not need to establish that mandatory vaccination is required by health and safety laws. It does, however, need to be confident that giving such a direction is not contrary to such laws. This is an important and often misunderstood distinction.
We consider that in all but highly exceptional circumstances, implementation of a mandatory vaccination policy would not be contrary to occupational health and safety laws.
What constitutes a “reasonable” direction is less well-established than what constitutes a lawful direction. It is clearly not a matter that is to be determined in a vacuum. The nature of work and relationship are informative. Frequently, the reasonableness of directions has been considered in the context of implementation of health and safety policies.
Recent decisions of the Fair Work Commission (FWC) have confirmed that a direction to be immunised (against influenza) may constitute a lawful direction. In doing so, the FWC has found that such a direction is neither inherently discriminatory nor an assault or battery.
It seems reasonable to assume that the FWC would adopt a similar position in relation to a direction to take a COVID-19 vaccine. Employers can, therefore, have confidence that a direction to require vaccination as a condition of work will normally be both lawful and reasonable.
On the other hand, it is important to bear in mind that although a direction to take a COVID-19 vaccination is likely to be regarded as lawful and reasonable, and as such to constitute a “valid reason” for termination for purposes of unfair dismissal claims, employers are still required to accord employees an appropriate level of procedural fairness before treating a valid reason as a ground for termination of employment.
It is also important to bear in mind that disciplinary action short of dismissal can constitute “constructive” dismissal if it is adjudged not to be reasonable in the circumstances.
This is not to suggest that refusal to observe a mandatory vaccine direction cannot lawfully lead to termination of employment or other disciplinary action, but it is to emphasise the importance of observing appropriate standards of procedural, as well as substantive, fairness in such contexts.
Can the risk profile of a workplace objectively justify a reasonable and lawful direction to receive a vaccination?
Although safety and welfare considerations for all workers and workplace participants need to be balanced against the rights of individuals, the nature of the balancing process has changed dramatically in NSW and Victoria in particular.
Initially, the focus was on high-risk environments, where the medical and safety advice has been that vaccines are necessary.
Employers in these sectors, including health and aged care, had a clear path to mandate vaccinations. Employers not in a medical or aged care environment now need to carefully consider whether the risk profile of their workplaces can objectively justify a reasonable and lawful direction to take a vaccination.
All employers have both statutory and common law workplace health and safety obligations. Compliance with these obligations is, of course, mandatory. But whether a mandatory policy for vaccinations is necessary to manage a workplace risk does not fully resolve the question of whether a direction is reasonable. A direction may still be reasonable without being necessary.
In this context, even though vaccination does not guarantee that the individual concerned will not contract the virus or infect another person, the capacity to declare that all staff are vaccinated is likely to provide an employer with reliable comfort in the face of potential litigation, as well as a level of assurance to its clients as to its commitment to safety.
It seems obvious, but necessary, to point out that when the virus is circulating in the community and there is full and ready access to a vaccine, then a fully vaccinated workplace will have a higher level of safety than a workplace with lesser rates of vaccination.
If the health advice is that in such an environment, a workplace with 90 per cent vaccination will be safer than a workplace with 50 per cent vaccination, does this suggest an employer should mandate vaccinations?
This may seem trite, but it must be recognised that this is the more likely scenario for Australia, given that the virus is likely to continue to circulate for some considerable time. Surely, this is a scenario that needs serious and informed consideration by employers, especially if the data suggests that vaccinated people are on balance less a risk to others than unvaccinated people.
The counter-position is that other control measures (NPIs) could instead be used to manage COVID-19 risks in the workplace (e.g. the wearing of PPE, rapid antigen testing, varied work patterns or locations etc.) But this would not in itself render a managerial decision to mandate vaccination unreasonable or unlawful.
For starters, work health and safety laws require the risk of exposure to COVID-19 to be eliminated or minimised so far as is reasonably practicable.
Applying this standard requires taking account of a range of factors, including the likelihood of exposure to COVID-19 occurring, the degree of harm that might result from that exposure and the availability and suitability of ways to eliminate, or otherwise minimise, that exposure.
Further, business considerations are relevant to reasonableness in this context. If the business is likely to be a more attractive place for customers to visit if its workforce is fully vaccinated, or less prone to interruptions or forced shutdowns, it is legitimate to take this consideration into account.
The personal circumstances of employees are also relevant.
To date, the focus has been on workplaces where employees interact with people with an elevated risk of being infected with COVID-19 (e.g. employees working in hotel quarantine or border control), or employees who have close contact with people who are most vulnerable to the health impacts of COVID-19 (e.g. employees working in health care or aged care).
However, overseas experience suggests that when restrictions are eased, and the virus is still circulating in the community, albeit at a socially acceptable level, most, if not all, workplaces will be susceptible to infection.
This year has shown that people have contracted the virus attending sporting events, at shopping centres, in offices, and on construction sites.
These considerations suggest that it is likely that risk assessments will confirm the imposition of vaccinations to be reasonably practicable in the near future for many workplaces.
In this context, the medical advice that people who are vaccinated can still contract COVID-19 and therefore transmit the virus to others is an important consideration. Even when an individual is fully vaccinated, they still have an interest in whether others are vaccinated.
John Tuck is head of employment and labour and the Honourable Graeme Watson is a partner at Corrs Chambers Westgarth.