COVID-19 Vaccine – No Jab No Job?

Many of us are looking forward to the roll-out of the COVID-19 vaccine as a key milestone along the path to “normal”. Some employers are keen to see their employees vaccinated because it reduces COVID-related risk for all in the workplace, clients and employees alike.

Key Updates

  • The priority COVID-19 vaccination program will commence in late February followed by community vaccinations from May 2021. The roll out will be in phases with the top priority being quarantine and border workers, priority groups of frontline healthcare workers (as agreed with State and territory governments), aged care and disability care staff, and aged care and disability care residents. The summary of the current roll-out strategy is available here. (Note that under 18s will only be vaccinated if medical advice indicates that it is safe to do so.)
  • The COVID-19 vaccine will be free for all Medicare-eligible individuals.
  • So far, the Federal, State and Territory Governments have indicated that COVID vaccinations will not be compulsory, but they will strongly encourage people to be vaccinated. 
  • The Federal Government has stated that it does not intend to add the COVID-19 vaccination to the “No Job No Play” policy. The “No Jab No Play” policy is a Federal policy that withholds certain benefits and rebates from parents whose children have not received key vaccinations. It also imposes penalties on childcare centres that admit unvaccinated children.
  • In 2020, the Victorian State Government passed the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020 (Vic) which allows the Secretary of the Department of Health to issue directions to the Ambulance Service, public and private hospitals, day procedure centres and mobile health services to require persons employed or engaged at the establishment to be vaccinated or to prove immunity against a specified disease. The legislation says that the Secretary’s directions do not constitute discrimination on the basis of political belief or activity or religious belief or activity under Victorian equal opportunity laws. 

    When introducing this legislation, the Victorian Government justified this measure on health and safety grounds as part of its statement of compatibility with the Charter of Human Rights and Responsibilities, noting that:

    • vaccines are highly effective and safe,
    • healthcare workers are at particular risk of being infected with communicable diseases and transmitting those preventable diseases,
    • the Secretary’s direction under this legislation does not mandate that people will be vaccinated without consent. A refusal to be vaccinated will have consequences on the worker’s employment.

Are employers legally permitted to require its employees to be vaccinated?

An Occupational Health & Safety (OH&S) Question

Vaccine policies have been around for many years, particularly in the health sector.  Under State and Territory OH&S laws, employers and occupiers of workplaces (Duty Holders) are required to ensure, so far as is reasonably practicable,[1] the health and safety of their workers and third parties such as customers or clients. Employees are also required to take reasonable care of their own health and safety and of others’ health and safety in the workplace. 

A Duty Holder needs to eliminate the risk to health and safety so far as is reasonably practicable, and if it is not reasonably practicable to eliminate it, it must reduce the risk as far as reasonably practicable.[2] In the context of COVID-19, employers should consider the following:

Factors relevant to what is “reasonably practicable”[3]COVID-19 – GenerallyWorkplace specific issues
The likelihood of the hazard or risk concerned eventuating.COVID-19 is more contagious than many communicable diseases we have seen, with certain strains more contagious than others.Some workplaces where social distancing is difficult or personal touch is inherently part of the service will have a higher likelihood of the COVID-19 risk eventuating.
The degree of harm that would result if the hazard or risk eventuated.The consequences of contracting COVID-19 can be extremely serious. Whilst certain “at risk” groups are known, there are many outside those at risk groups who have died after contracting COVID-19.Some businesses serve particularly vulnerable clients, such as older people and people with disabilities.
What the Duty Holders knows about the hazard or risk.Whilst our knowledge of COVID-19 is increasing, there is much that is still unknown.The knowledge a Duty Holder should have about the virus is probably similar across all sectors. All Duty Holders have an obligation to understand the risks.
The availability and suitability of ways to eliminate risk.A vaccine is the most straightforward way of reducing (not eliminating) the risk, but there are other ways, such as regular cleaning, providing personal protective equipment, avoiding shared tools, and providing appropriate amenities.Some workplaces might have other methods of managing the risk (e.g. having all employees working from home). A 100% working from home model is unlikely to be practicable for the majority of employers in the medium to long term.

Employers also need to consider how they should consult with employees about their vaccination strategy. Under the Victorian OH&S Act,[4] employers are required to consult with affected employees when making decisions about measures to be taken to control risks to health and safety. A policy that has been subject to consultation is less likely to be challenged by employees, and a court might take that into account in assessing the reasonableness of a business’ vaccine policy.

OH&S is not a carte blanche – Lawful and reasonable directions

OH&S considerations might make a vaccination policy/directive lawful. Employees are only required to follow “lawful and reasonable” directions from their employer.

In a recent Fair Work Commission case, Deputy President Asbury indicated that a policy requiring mandatory vaccination may be lawful and reasonable in the context of the employer organisation’s operations which involved the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason.[5]

What is reasonable in one workplace and one employment context, might not be reasonable in another. The important case of Glover v Ozcare is currently before the Fair Work Commission and is expected to provide additional guidance for employers on the lawfulness and reasonableness of vaccines. Employers are encouraged to seek legal advice in relation to their specific operations.

No law against encouraging employees to get a vaccine

After going through the above analysis, some employers might consider that it can effectively manage OH&S risks by encouraging employees to get vaccinated, for example, by offering paid time off for employees to get the vaccine.

I want to mandate vaccinations. What should I do?

While we wait for specific guidance from the Courts or the Fair Work Commission on an employer’s right to mandate vaccines, here are some things to bear in mind:

  • Can risks be effectively managed by encouraging employees to obtain the vaccination rather than requiring it?
  • If you’d like to make vaccination a condition of employment for new and existing staff, is vaccination an inherent requirement of an employee’s job, and is it adequately addressed in your policies and employment contracts?
  • Consider the factors outlined in the above table on a role or team basis. In particular, consider whether all employees need to be vaccinated. It may be that only those employees that work with vulnerable individuals or cannot work from home need to be vaccinated.
  • Address the possibility that an employee might not be able to be safely vaccinated for health reasons. What evidence might you require to grant a medical exemption under your policy? How would you manage the health and safety of that unvaccinated employee, and those in contact with them?
  • Consider how you would consult with employees about your vaccination policy?

How we can help

For more information or guidance regarding mandatory vaccinations or employment advice regarding COVID-19, please do not hesitate to contact us.

[1] All Australian OH&S legislation, except WA, expresses the duty as requiring the employer/occupier to do what is “reasonably practicable” standard. The “practicability” standard in WA is interpreted as effectively meaning the same as “reasonably practicable”.
[2] Section 20(1) of the Occupational Health &Safety Act 2004 (Vic). Other State and Territories’ OH&S legislation imposes similar duties.
[3] Section 20(2) of the Occupational Health &Safety Act 2004 (Vic)
[4] Section 35 of the Occupational Health and Safety Act 2004 (Vic)
[5] Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083, [32].