From a legal standpoint, there are three reasons for mandating a vaccine in your workplace:

1. A Law or public health order mandates the vaccine
2. An EBA or employment contract mandates the vaccine
3. Employers issue a lawful and reasonable direction

Whilst the official advice from the Australian Government continues to evolve, our legal advice remains that a COVID-19 vaccine can, and should, be mandated in workplaces.

This article outlines the following:

• Safety and Discrimination Law related to vaccines
• No-Fault COVID-19 Indemnity Scheme
• The latest guidance from the FWO
• How employers should approach the process of mandating vaccinations
• Related case summaries

Safety and Discrimination Law related to vaccines

It is undeniable that there is a clear safety reason for mandatory vaccination and employers can rely on their obligations to fulfil their primary duties to issue the directions.

Section 21 of the Occupational Health and Safety Act 2004 (VIC) (OHSA) establishes a primary duty for employers to provide and maintain a safe working environment that is without risks to employees’ health. This duty is not only extended to protect employees but similarly, employers owe this duty to other persons who may visit the worksite (under Section 23 of the OHSA).

Section 25 of the OHSA requires employees to exercise reasonable care to prevent risks to others. So, it is both lawful to direct and employees must act responsibly by accepting vaccination to protect other people.

It is undeniable that these duties mean the vaccine can be made compulsory for employees who work in high-risk industries or roles where a vaccine is required to complete the inherent requirements of their job. For example, in health and aged care where employees would be taking care of highly vulnerable individuals. Not only will the vaccine ensure a safer workplace for the employees, but it will also protect everyone else who could be exposed in the workplace.

The only possible exception is for roles that are conducted entirely remotely where the employee is unlikely to be exposed to anyone else. However, even in those circumstances, it could be legitimately argued that the infectious nature of the virus means that even casual contact within an employee’s private life could put them at risk without the vaccination, which could ultimately result in fatal consequences and create liability under safety legislation for an employer.

Things become tricky when you have employees who do not want to be vaccinated for personal reasons; then the possibility of discrimination claims can arise. A lawful and reasonable direction will not be lawful if it is discriminating against an employee’s protected attribute such as their religion or their disability.

Any policy requiring mandatory vaccinations will require an exception (with appropriate controls) for employees with:

• Medical exemptions
  It would be a breach of an employer’s duties to force an employee to be vaccinated if they are aware that the vaccination will cause harm to the employee due to their unique circumstances. Terminating an employee for refusing a COVID-19 vaccination would qualify as disability discrimination and breach section 15 of the Disability Discrimination Act 1992 (Cth) and section 18 of the Equal Opportunity Act 2010 (VIC).It is worth noting that if the protected attribute prevents vaccination but creates uncontrolled risks to others then the employee’s employment may be terminated.
• Religious exemptions
  Under section 14 of the Charter of Human Rights and Responsibilities Act 2006 (VIC) (Charter) and section 18 of the Equal Opportunity Act 2010 (VIC) (there is no protection for religion under Federal legislation), it may be considered discriminatory to force employees to become vaccinated if it goes against their religion. Whilst most major religions do not have clearly defined objections to vaccinations, employers should be wary about refusing to provide a religious exemption if there is no reasonable basis to do so, otherwise, you will find yourself facing a losing battle in an adverse action case.
• Other personal reasons
  Whilst freedom of expression is a human right under section 15(1) and 15(2) of the Charter, section 15(3) makes it clear that the right to freedom of expression may be subject to lawful restrictions, if necessary, for the protection of “public health.” Therefore, an employee will not be able to refuse a lawful and reasonable direction to get the COVID-19 vaccine purely because it goes against their personal beliefs, because the purpose behind the vaccine is to protect everyone in the workplace.

No-Fault COVID-19 Indemnity Scheme

On 28 August 2021, the Federal Government quietly introduced the No-Fault COVID-19 Indemnity Scheme (Scheme) which allows for quick access to compensation claims for any adverse reactions from TGA approved COVID-19 vaccines. The scheme will be backdated to February 2021 and Australians can begin registering claims from 6 September 2021 through Services Australia.

The Scheme will cover any adverse reactions or injuries above $5000 – the actual amount payable will be determined after expert review on a case by case basis. This is huge news for employers – they will be protected from any compensation claims if they organise the administering of vaccines through work or if they decide to mandate the vaccines. Clearly a subtle indicator from the government that they support compulsory COVID-19 vaccinations within the workplace.

The latest guidance from the FWO

The Fair Work Ombudsman has confirmed that there is a four-tier system to determining when it would be lawful and reasonable to mandate a vaccine.

The first two tiers are already covered by most state public health directions, mandating COVID-19 vaccines across specified high-risk sectors. As with the flu vaccine, we will likely see more employers in high-risk sectors have employment contract clauses mandating the COVID-19 vaccines or booster shots once the vaccine is more readily available.

Most employers will fall into Tier 3 where employees need to assess how high the risk of transmission is within their workplace. The higher the risk, the more likely it will be lawful to issue a direction. This will be relatively easy to prove if the workplace is in a high-risk setting. The question is really whether the direction will be reasonable given the current lack of supply of vaccines.

Employers will have to make judgement calls and then risk justifying their position at the Fair Work Commission. SPC is the first company to take on the risk, directing all 450 employees that they must be booked in for their first dose by 15 September 2021 or they would be unable to work. No doubt we will see many more employers testing the waters as vaccines become more easily accessible over the next couple of months.

How employers should approach the process of mandating vaccinations

The primary duties in each jurisdiction require employers do all that is reasonably practicable to ensure a safe workplace. No matter how good your COVID-Safe plan is, it remains an administrative control – a basic level of control in the hierarchy of controls.
Case law demonstrates that employers are expected to take steps to account for the possibility that employees may be reckless or make mistakes. It is an employer’s responsibility to predict the possibility of such flaws and have protections in place.

Step One – Undertake a risk assessment

The first crucial step in initiating this process is to undertake a risk assessment to see if mandating the COVID-19 vaccination would be a reasonably practicable measure for your business.

The exposure of COVID-19 is a foreseeable risk that must be assessed and managed in the workplace. By completing a risk assessment, it will enable you to:

• Identify which workers are at risk of exposure and if you have any vulnerable workers
• Assess what sources and processes are causing the risk
• Identify if and what kind of control measures should be implemented, would the COVID-19 vaccine be necessary as a control measure?
• Review the effectiveness of your existing control measures

Once you have considered the risks and reviewed your current control measures, if a business reasonably believes their employees should be vaccinated, particularly those working in the meat industry, manufacturing, health care, aged care or childcare they may lawfully and reasonably direct their employees to get the COVID-19 vaccination.

Step Two – Consult

If a business is intending on mandating the COVID-19 vaccine after they have undertaken a risk assessment, it is good practice for an employer to consult with their employees and the Unions, as each individual has different circumstances which should be considered.

A risk assessment should identify if there are any workers who are vulnerable or have a valid medical exemption before mandating all workers to receive the vaccine. An employer may be found to breach their duties if they know the vaccination will result in harm to the individual because of their medical exemption.

Nevertheless, the FWC in Glover v Ozcare states regardless of an employee’s reason to not be vaccinated (whether it’s medical, based on religious grounds, or the person is simply a conscientious objector), it is ultimately a business decision to make a vaccination an inherent requirement of the role and issue a lawful and reasonable direction.

If employers choose to grant an exemption they must ensure it is valid, as there is risk around other employees attempting to use similar grounds to not receive the vaccine and employers may then be subject to an adverse action claim.

Step Three – Make the lawful and reasonable direction

Once you have completed the risk assessment and identified whether your business has any workers at risk of exposure to COVID-19 or any vulnerable workers, you may issue a lawful and reasonable direction.

• Create a mandatory vaccine policy which must include individual risk assessments
• Vaccine policy must allow for exceptions such as on health or religious grounds
• Consult with employees before implementation

Related case summaries

• Jen­nifer Kim­ber v Sap­phire Coast Com­mu­ni­ty Aged Care Ltd [2021] FWC 1818
• Ms Nicole Maree Arnold v Goodstart Early Learning Limited t/a Goodstart Early Learning [2020] FWC 6083
• Barber v Goodstart Early Learning [2021] FWC 2156.
• Ms Maria Corazan Glover v Ozcare [2021] FWC 231

This article was first published on 11 February 2021 and continues to be updated as new guidance is released.