The imminent release of COVID-19 vaccines in Australia will bring new challenges for employers, but determining whether vaccinations can be mandated in specific workplaces will require the same "reasonable and necessary" test as other workplace safety requirements.
As set out in this newsletter, the issue of mandatory vaccinations is yet to be tested in the Fair Work Commission, but there is a high bar for employers to show that new and potentially onerous WHS requirements like vaccinations are lawful.
Question: Which industries and occupations might COVID-19 vaccinations become a WHS requirement or recommendation for, when they become available in Australia?
Answer: The Federal Government has already set out the priority order for which groups of people and which employees will be offered the COVID vaccine. The first phase will include front-line quarantine workers, front-line healthcare employees and aged and disability staff. The next phase identifies other health workers and critical and high-risk workers including defence, police, fire, emergency and meat workers. This list is subject to ongoing review and other occupations or industries could be added to the priority groups.
While the initial priority groups have been set by the Federal Government, it is possible that further guidance will be given by state and territory health departments as to which roles the vaccine is recommended for.
It will only be once the vaccination is available to the general public that employers will be able to consider whether the vaccine should be a WHS requirement or recommendation for employees. The types of roles where this may be considered are likely to be ones where there is direct and close physical contact with customers, such as hairdressers, beauticians or gym instructors. Employees who are required to interact with the public such as retail workers, hospitality workers, teachers and childcare workers are also likely to be subject to a vaccine-related WHS assessment.
Q: What issues might arise for employers planning to require or recommend COVID-19 vaccines for workers? Will it present new problems compared to existing flu or Q fever vaccination requirements in some workplaces?
A: While mandatory vaccinations have been in place in some industries for years, these are in very specific roles. It was only last year that a much broader requirement for flu vaccinations for both aged care staff and visitors was put in place.
The first unfair dismissal case involving a refusal of an employee to have a flu vaccine is currently before the Fair Work Commission. The outcome of this may give some guidance to employers as to whether employees can refuse to have the vaccine if there are WHS reasons for why it is required for their particular job.
The types of new issues that the COVID vaccine will present is if it is considered in industries where there has never been even a recommendation from employers for employees to be vaccinated before, such as retail. While it is a new vaccine, the test for whether it can be made a requirement by employers will be the same as for other vaccinations, which is that it is reasonable and necessary to address a safety risk for the employee.
The issues that employers are likely to need to consider are whether there are exemption categories for the vaccine such as known allergies. There is also likely to be groups of employees who the vaccine may not yet be approved for, such as pregnant employees and junior workers. Employers will need to consider any objection by an employee on a case by case basis.
Q: What should employers consider before mandating the COVID-19 vaccine?
A: Employers should approach this question in the same way they would assess any other WHS risk in their workplace. While the issue of mandatory vaccinations has not been tested in the Fair Work Commission, the issue of imposing new and onerous safety requirements on existing employees, which they have objected to for various reasons, has been considered previously.
The Fair Work Commission has made it clear that where the objections have a reasonable basis, it will not be enough that the step the employers wants existing employees to take will improve safety: it must be necessary with no other way to address the risk. This is a high bar for employers to meet with existing employees.
Q: What should and shouldn't employers do when an employee declines to get a vaccination?
A: Employers will need to engage with employees to understand what their reasons are for declining to be vaccinated.
There are existing exemption grounds, such as proven allergic reaction, where vaccinations are mandated for an existing workforce such as for the flu in aged care. It is likely that these exemption grounds would also apply to the COVID vaccination.
Employers should not take action without understanding what the reasons for declining are and whether these can be addressed. It may be that there is a genuine reason which the employee is reluctant to discuss, such as being in the very early stages of pregnancy.
It will be essential for employers to be able to explain to the employee the reasons why they believe the vaccination is reasonable and necessary and that there is no reasonable alternative available. Employers must ensure that a fair and consistent approach is taken to any objections raised by employees. Any dispute can also be dealt with through the processes set out in the relevant safety legislation.