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COVID-19 & Mandatory Workplace Vaccines

With the ongoing impacts of COVID-19 and its effects on almost all facets of life, many employers and business are looking towards vaccines to stop the spread of COVID-19, protect employees and customer, and otherwise continue business operations with a minimum of disruption.

10 September 2021

The introduction of mandatory vaccines in workplaces can help to ensure that workplaces can continue to trade with less risk of severe COVID-19 or hospitalisations of employees. However, ongoing issues with vaccine supply, vaccine hesitancy and misinformation, discrimination and underlying medical conditions provide significant barriers to implementing mandatory vaccines into all workplaces across the board. There are a number of legal and ethical concerns relating to mandatory vaccines. Employers and employees should seek legal advice before implementing or agreeing to mandatory vaccines in their workplaces.

The Federal Government continues to reject calls by some businesses for the implementation of legislation that provides for all eligible Australians to be vaccinated against COVID-19. In New South Wales, the State Government has introduced mandatory vaccines for certain workers including quarantine workers, health & aged care workers and for workers including tradespeople and childcare workers living within areas of concern. Some companies, such as SPC, have gone it alone and announced mandatory vaccines for its employees by November 2021. Other companies are also considering mandatory vaccines for employees or hoping that the Government makes orders for their staff to be vaccinated, such as airlines.

According to the Fair Work Ombudsmen, employers can require their employees to be vaccinated when:

  • A specific law requires an employee to be vaccinated (such as the NSW public health orders mentioned above);
  • The requirement is permitted by an enterprise agreement, other registered agreement, or employment contract;
  • It would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis.

To assist employers and employees to undertake a case-by-case analysis, the Fair Work Ombudsman has released a 4-tier approach for workplaces:

  • 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 (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 (such as front line health care and aged care workers);
  • 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 (such as stores providing essential goods);
  • Tier 4 work: where employees have minimal face-to -face interaction as part of their normal employment duties (such as people working from home).

For Tier 1 or 2 workers a direction to be vaccinated would likely be reasonable. A direction for vaccines for Tier 3 workers could likely be found to be reasonable where community transmission of coronavirus is occurring in an area and an employer is operating a workplace in that area that needs to remain open despite a lockdown, (such as a supermarket in Western Sydney currently). A vaccine direction for Tier 4 workers would likely to be found to be unreasonable.

Some employment contracts may provide terms containing vaccinations, including Covid 19 vaccinations. Due to the recent nature of the disease and vaccinations, many employment contracts would be assumed to have no terms relating to Covid 19 vaccination. Employers may be able to insert a term requiring Covid 19 vaccination for current and future employers. To amend the contract agreements of current employees, employers would have to seek consent by their employees and/or unions before any amendments can be implemented. The implementation of mandatory vaccination terms into any agreement may be contrary to anti- discrimination laws and legal advice should be sought regarding their drafting and implementation.

For some employees that refuse to be vaccinated against COVID 19 without valid reason, their employment may be terminated. For some employees including those in health and aged care this can be justified by public health orders and their required reasonableness. For other employees including those working from home with minimal contact with an office environment, it would likely to be found unreasonable and could be subject to an unfair dismissal application.

If you would like any further information or advice surrounding your employment or employees and COVID 19 vaccination, please contact us for your initial consultation on 02 4220 7100, or email lawyers@alg.com.au