There are articles about it, press conferences about it, advertisements about it, emails about it, social media campaigns about it and even a song by Kyle Sandilands about it. The cry to get vaccinated is coming from many walks of life. Politicians and healthcare professionals profess this is one of our best defences against COVID-19, and it is needed to reduce the incidence of lockdowns. However, the Federal Government has stopped short of making vaccinations mandatory.
The states and territories have made vaccinations compulsory for some occupations. These occupations vary between the states and territories, and are frequently changing. Residential aged-care and quarantine workers have to be vaccinated in most states and territories. Keep your eye on the public health orders in your jurisdiction to stay up to date.
On the one hand, you might agree with freedom of choice. On the other hand, you may be shaking your head because by not making vaccinations mandatory, the Federal Government has left that to employers, the courts and the Fair Work Commission to figure out. Where there is uncertainty, there will be litigation. Helpfully, the Fair Work Commission and Fair Work Ombudsman have provided some guidance. The Therapeutic Goods Administration is also providing support and guidance to businesses that want to support and incentivise COVID-19 vaccinations in the workplace. Find out more at www.tga.gov.au/communicating-about-covid-19-vaccines.
Can your business mandate vaccinations?
Do not assume that you can automatically enforce mandatory vaccinations simply because we have been in a global pandemic with multiple lockdowns.
Nor should you assume that every employee will be required to have a vaccination. Each employee’s circumstances need to be considered, including any medical reasons they may put forward for refusing to get vaccinated.
Vaccinations can be mandatory where:
- relevant Commonwealth, state or territory legislation, or a public health order applies to those workers;
- it is a requirement under an enterprise agreement, other industrial instrument or an employment contract (this requirement must comply with anti-discrimination laws, and be lawful and reasonable); or
- in the circumstances it would be lawful and reasonable to issue a vaccination direction.
What is a lawful and reasonable vaccination direction?
Whether a direction to be vaccinated will be lawful and reasonable will depend on your workplace and each employee’s individual circumstances. When assessing whether a direction for mandatory vaccination will be lawful or reasonable, consider:
- your workplace and the type of work an employee is required to perform;
- the level of interaction an employee is required to have with other staff and the public in performing their role, including whether your employees will be interacting with:
- vulnerable people, such as the sick, elderly or those with disabilities; and
- people who are regularly exposed to COVID-19, such as quarantine, border control workers or healthcare professionals dealing with COVID-19 patients;
- whether social distancing is possible and whether work practices can be changed to reduce close interactions;
- whether personal protective equipment can be provided to staff, or other barriers constructed to separate workers from each other and the public;
- whether you have access to rapid COVID-19 testing or require your employees to get regular COVID-19 tests;
- whether you can implement temperature and symptom checks before employees start work;
- the extent of community transmission in your business location, the locations the employee is required to work and the employee’s residence;
- the effectiveness of vaccines in reducing transmission, illness and death;
- the availability of vaccines for that employee;
- your work health and safety obligations to your staff, contractors and customers;
- whether the employee has a valid medical reason for refusing a vaccination; and
- whether work can be performed by the employee from their home.
What to do if you wish to make vaccination mandatory
If you are thinking about making vaccinations mandatory in your workplace, you must consult with your employees. Most modern awards, enterprise agreements and health and safety legislation require it. Remember, consultation involves a two-way process of listening, discussing and considering employees’ views.
If it is a workplace requirement to obtain a vaccination, then normally employees should be paid during the time they are off work getting vaccinated. Later starting times or earlier finishing times may also be an option. Arrangements might also be able to be made with a local pharmacy or medical centre to do bulk vaccinations or if your business is big enough, the relevant Department of Health. Getting a vaccine is normally not a valid use of accrued personal leave given the requirement is that an employee be ill or injured. However, remember that if an employee has a reaction to the vaccine, they can take personal leave if they have an entitlement.
If you are in doubt as to whether you can implement mandatory vaccinations, get legal advice.
By Kelly Godfrey