Guiding mandatory vaccinations in the workplace

As the prevalence of the COVID-19 Delta variant and consequential lockdowns continue to have a devastating impact on Australian businesses, employers are asking whether it is possible to mandate the implementation of COVID-19 vaccines in their workplaces to protect their employees and safeguard ongoing business operations.

SPC became the first Australian Company to mandate vaccinations for all its 450 onsite staff and visitors with other major Australian companies such as Qantas, Telstra, Westpac and BHP following suit in recent weeks.

SPC staff were given until the 15 September 2021 to book their first dose of the vaccination or risk being barred from ongoing on-site work. SPC took the view that mandatory vaccinations were lawful and reasonable having regard to the Work Health and Safety (WHS) obligations of the company and its status as an ‘essential service'. An investigation by Work Safe Victoria earlier this month exonerated SPC from any wrongdoing, confirming that the issued direction on mandatory vaccinations was made in accordance with the company's relevant work, health and safety obligations.

Can employers mandate employee vaccinations?

Employers have an obligation under model WHS laws to ensure so far as reasonably practicable the health and safety of their workers. This responsibility includes taking reasonable steps to minimise the risks of exposure to COVID-19 in the workplace. As such, employees have a duty to comply with their employer's lawful and reasonable directions, which may include a mandate for vaccinations as a condition of work.

For a direction to be lawful, it must comply with any employment contract, award or agreement in place as well as any Commonwealth, state or territory law that applies including anti-discrimination law and privacy laws. The reasonableness of a mandatory vaccination initiative in a respective workplace will vary with regard to the ‘tier' of work being performed and the likely risk of exposure to COVID-19.

The Fair Work Ombudsman recently confirmed that there is a four-tier system to determining the circumstances where it would be lawful and reasonable to mandate vaccinations for key industries:

• Tier 1 Employees are in direct threat of interacting with people at increased risk of being infected with the coronavirus such as hotel quarantine workers or border control workers
• Tier 2 Employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus, such as medical professionals and aged care workers
• Tier 3 Where there is an increased likelihood of employees interacting with customers, clients, or the general public during the course of employment, such as customer or client related employment
• Tier 4 Employees have minimal face-to-face interaction as part of their normal employment duties, such as working from home

The first two tiers are covered by most public health orders which mandate vaccinations for employees in these high-risk settings. The employers that fall within the Tier 3 category are required to assess whether introducing a mandatory vaccination policy to their employees will be lawful and reasonable in their specific circumstances, having regard to the risk of transmission within the workplace.

What does this mean for your Business?

In light of SPC's recent directions to its employees and the increased strain that COVID-19 continues to place on Australian businesses generally, employers may now wish to consider whether a mandated vaccination policy is necessary and appropriate for their workplace.

Mellor Olsson strongly encourages businesses to undertake risk assessments to determine whether mandating COVID-19 vaccinations in the workplace would be a reasonably practicable measure to ensure ongoing workplace safety. If your business reasonably believes that such a control measure is necessary to protect to the health and safety of your employees, it should actively consult with employees to determine whether such control measures should be implemented and whether the circumstances of the business require the implementation of such a measure.

Once a risk assessment has been undertaken and you have identified whether your business has any vulnerable workers, having regard to the four tiers and the legal consequences of employment, privacy and anti-discrimination laws, it may be appropriate to issue a lawful and reasonable direction in respect to mandatory vaccinations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.