Can Employers direct the Jab? Covid-19 Vaccinations in the Workplace

With the confirmed rollout of the Covid19 vaccination in Australia ahead of schedule by almost 6 weeks, the question looms for Australian businesses as to whether they can require their employees to compulsory receive the inoculation or provide a legal direction for them to receive it.  

The Federal government has broken down the vaccine rollout into five phases that provide for different groups in order of priority with ‘Phase 1a to be made up of some 678,000 people which include quarantine and border workers, frontline health workers and aged care and disability staff and residents.

The Prime Minister has made it clear from a Federal point of view, that the receiving of the vaccine will be completely voluntary. However, both workplace and public health and safety is the responsibility of individual states and territories and it remains to be seen if legislation or regulations will be implemented on a state-based level making injections compulsory for attendance at work or in various public places. This is particularly the case in workplaces that may be of a high or moderate risk environment for example aged care facilities and health facilities.  

The NSW Premier has indicated in recent days that proof of receipt of the vaccine will be required in order to enter pubs and clubs for the general public and one would assume that this would also apply to workers at these places of work. Whenhow and who will assume responsibility and potential liability is not yet clear.  

Nor is it currently clear as to what extent existing work health and safety and industrial laws will assist employers to force vaccines on their workforce. We consider these matters further in this article. 

Work Health and Safety Obligations 

In states and territories that have adopted the model work health and safety legislation such as NSW, where the Work Health and Safety Act 2011 (NSW(‘the Act’) operates, there is an obligation upon employers who are considered the primary duty holder under the legislation as a Person Conducting a Business or Undertaking (PCBU), to ensure so far as is reasonably practicable the health and safety of all workers and other persons who may be put at risk at a workplace.

It may well be regarded by regulators, that the introduction of a workplace mandatory vaccine policy would be considered a reasonably practicable measure to be taken by a PCBU to ensure a safe workplace. Cost is one consideration when considered what is reasonably practicable in the circumstances of managing a risk and as the cost of the vaccine is being met by the Federal Government this would give weight to this argument. 

Another key consideration may well be the nature of the business in terms of worker’s exposure to the risk of contracting Covid 19 such as the health and aged care sectors. 

Workers also have obligations under the Act to take reasonable care for their own safety  and that their acts or omissions do not adversely affect the health and safety of other persons. They are also required to comply so far as they are reasonably able with any reasonable instruction given to them by a PCBU /their employer and to cooperate with any reasonable policy. A failure by a worker to follow a mandatory vaccination policy could arguably put themselves at risk of a breach and prosecution under the Act. 

Lawful and Reasonable Direction 

There exists in the law of employment an implied term in any contract of employment that an employer can give a lawful and reasonable direction to perform a task or comply with instructions, providing that direction or instruction properly appertains  to their job. If an employee fails to follow that direction, they are in breach of their contract of employment and/or can be dismissed. 

The common law position needs to be distinguished from that relating to the law with respect to unfair dismissal claims where for instance an employee may claim that they have been dismissed ‘harshly unjustly or unreasonably’5 by their employer due to a failure to comply with a particular direction and which does not of itself mean that the direction was unlawful. 

Relevant considerations for employers in seeking to implement a mandatory vaccination policy and provide a lawful and reasonable direction to their employees include whether exemptions should be granted under the policy due to religious grounds, existing conditions or disabilities and age. Other considerations would be whether there are other available measures to reduce the risk of Covid– 19 such as requiring wearing of masks, social distancing, hand sanitiser and working from home. 

Some guidance as to how a mandatory vaccination policy may be interpreted can be obtained from the Fair Work Commission decision in a recent case of Arnold v Goodstart Early Learning Ltd T/A  Goodstart Early Learning [2020] FWC 60836. 

In this case GoodStart had introduced a free mandatory flu vaccination policy for all employees with an exemption based on medical grounds. An employee, Arnold ,objected to the vaccination for no apparent reason and was subsequently terminated for her failure to receive the inoculation.

This case would certainly be persuasive in the argument, that at least in certain employment sectors, failure to comply with a direction to be vaccinated against Covid 19, without a reasonable excuse such as medical condition, could allow employers to terminate their employees employment. 

Considerations & Actions for Employers 

Hopefully employers will be given some further guidance in the near future from respective State governments and/or their regulators through legislation, regulations and/or Work Health & Safety Codes of Practice for the management of these risks and the implementation of a mandatory vaccination policy at least in certain sectors, however in the interim employers should consider the following; 

  • whether it is appropriate for their business to implement a policy that addresses workplace vaccinations and what measures can be taken to reduce the work health and safety risk relating to Covid 19. 
  • training employees on measures to effectively reduce the spread of Covid 19 including providing accurate information on the benefits and the risks of vaccination. 
  • whether they should arrange for employees to  voluntarily be vaccinated against Covid 19 during work time and on premises. Current information is that employees may likely need two doses of the same Covid 19 vaccination approximately one month apart. 
  • whether it is appropriate to provide incentives to entice employees to voluntarily be vaccinated 
  •  avoid any unintended unlawful discriminatory impact on employees who may have a reasonable excuse not to be vaccinated either due to health, religion or other protected reasons.  

If you are considering such a policy Roberts Legal is able to assist by providing advice in relation to your work health and safety obligations and whether it is lawful for your business, in its particular circumstances, to provide a direction to employees and/or a mandatory vaccination policy and we can also assist in the development of an appropriate policy. 

By Jeremy Kennedy,
Special Counsel