Mandatory Vaccinations for Employees

The issue around mandatory vaccinations for employees is challenging, and frankly still quite ‘murky’. 

There are a range of employees who are required by law (i.e. by way of state public health orders) to receive the vaccination in order to continue work. In Victoria, this is limited to Aged Care workers and Quarantine/Airport workers. 

Other workers who work in close proximity with vulnerable people (such as health care workers, hospital staff, etc.) will either be subject to a similar lawful directive, or may be directed to receive a vaccine through a power available to them through their Enterprise Agreement (N.B. most of these workers will be covered by a public sector EA).

The remainder of the workforce however, is not subject to any such directives. The repeated message from Government is that this in unlikely to change in the future. Therefore, the decision to impose a mandatory vaccination policy within a workplace will be entirely at the discretion of the individual employer. This is problematic, because any such policy could immediately be subject to judicial scrutiny or be a point of contest in any dismissals that might result from non-compliance with such a policy. 

Normally with grey areas such as this, we would hope to see a test case go before the Fair Work Commission or the Federal Court, with the resulting decision offering some guidelines in how policies ought to be correctly applied. However, in this circumstance, we are without such a case. 

Some businesses have proceeded with a mandatory vaccine policy (notably the food processor SPC) and may end up being the very test case we are awaiting. However, any policy that is dealing with a mandatory vaccine impacting on public health will need to be quite specific to that business and its specific OH&S and public health considerations. Therefore, it is not necessarily a guarantee that if it were acceptable for SPC, it would necessarily flow to restaurants (because the public health implications would be different for example). 

In order to offer some level of clarity amongst this inherently murky problem, the Fair Work Ombudsman (FWO) recently published some guidelines. Please note, these are simply guidelines and have no legal bearing on any potential future case that might arise.

In summary, FWO suggest that mandatory vaccine policies be addressed on a case-by-case basis. In doing so, employers should consider their OH&S/WH&S obligations, the nature of their workplace, the extent of community transmission, each employees personal circumstances, vaccine availability, whether employees have a legitimate reason to not be vaccinated (e.g. a medical exemption) among other things. 

FWO suggests considering your specific workplace within the context of a four tier system:

• Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control). 
• Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).
• Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).
• Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

Tier’s 1 & 2 are likely to already be subject to state public health directives (or soon will be). Tier 4 is unlikely to be able to ever introduce a mandatory vaccination policy because their risk profile is reasonably low. Tier 3 however, which is likely to include the hospitality industry, retail and other similar customer facing industries, is really where the challenge lies. 

FWO suggests that tier 3 employers who are not in an area of high community transmission would likely find any mandatory policy to be unreasonable. However, tier 3 employers who are in high community transmission areas may have grounds to implement such a policy. 

Irrespective of the above, each workplace must consider the question in light of its individual circumstances and follow a procedure for implementing a new workplace policy (i.e. consultation with employees, education about the new policy and giving employee’s time and opportunity to comply with the policy). 

Ultimately, the question is one of balancing your obligation to provide a safe workplace to your employees and customers, against an individual’s right to not be vaccinated. 

If a workplace policy is well-founded, after a careful consideration of the above circumstances, then is it likely to be enforceable. 

If however, the policy is not well-founded or you have failed to consider the circumstances of the individual in question, then it may well be the basis for an unfair dismissal or general protections application. 

Unfortunately, the question as to whether you can compel an employee to be vaccination has no simple or straight forward answer. If you would like assistance in determining whether your workplace should or could consider a mandatory vaccination policy please be sure to give us a call.