The COVID-19 vaccine rollout is underway in Australia, albeit shakily. For most of us non-scientific folk, the AstraZeneca and Pfizer vaccines herald the end of a tumultuous fifteen months, filled with uncertainty, snap lockdowns and a wave of epidemiological terms that we’re keen to flatten (see what we did there?). But until the latest outbreak which triggered Victoria’s fourth lockdown, vaccine uptake had been slow, driven by vaccine hesitancy and complacency amongst some pockets of the community.
At times like these, employers may be considering implementing a mandatory vaccination policy for its workforce. Because we’re very helpful chaps, we’ve taken a squiz at the relevant laws and have some answers to the nit picky questions that might arise.
Microsoft has rolled out mandatory Windows 10 updates. Can I roll out a mandatory vaccination policy in my workplace?
Currently, there are no laws or public health orders in Victoria enabling employers to require their employees to be vaccinated against COVID-19. This means that you may only roll out a mandatory vaccination policy if it is lawful and reasonable to do so. Ah yes, the cryptic obscurity of the law strikes again…
‘Lawful’ means a combination of two things. First, your policy must comply with all the boring but important contractual stuff that’s probably buried deep in a HR subfolder on your organisation’s shared drive. In short, that’s the employment contracts, the applicable award and the enterprise agreement or registered workplace agreement. Second, your policy must comply with all the relevant laws, including anti-discrimination laws. So, you can bet the policy won’t be lawful if it only requires bar-hopping twenty-somethings who frequent Chapel Street to get vaccinated.
‘Reasonable’ refers to whether a mandatory vaccination policy is an appropriate measure to eliminate or minimise risks to health and safety – a core obligation of all employers. Reasonableness is assessed on a case-by-case basis and requires consideration of factors including the nature of the employment, role requirements, workplace practices and procedures, current medical advice and the availability of other measures to minimise health and safety risks. For example, a mandatory vaccination policy may be appropriate in relation to:
- hotel quarantine or border control, because employees are interacting with people at an elevated risk of being infected with COVID-19.
- health care or aged care, because employees are working with people who are highly vulnerable to the health impacts of COVID-19.
- childcare, because employees owe a duty of care to the children in their care, who are unable to be vaccinated (Arnold v Goodstart Early Learning).
- employees who dress up to play Mr and Mrs Claus in shopping centres, because yep you guessed it, taking photos with children (adult children included, naturally) is ripe for the transmission of COVID-19 (Glover v Ozcare). Fur-babies might be a little different.
So in short, unlike Bill Gates, the overwhelming majority of employers should assume that they cannot introduce mandatory vaccination policies in their workplaces.
It’s all well and good until Karen says she doesn’t want to be vaccinated.
*Sigh* there’s always one. Take a deep breath, bite your tongue and have a chat with your employee. They may have a legitimate reason.
People with certain disabilities, medical conditions or who are pregnant may not wish to be vaccinated for medical reasons. Don’t end up in hot water. Requiring people to be vaccinated in these circumstances constitutes indirect discrimination. If the employee has a legitimate reason, you’ll have to do two things. The first is to assess whether health and safety grounds necessitate vaccination. A mandatory vaccination policy will not be discriminatory if it is reasonably necessary to protect the health and safety of employees, clients and the general public. The second is to consider whether alternative work arrangements are a viable alternative to mandatory vaccination. These could include remote work, physical distancing and/or the use of personal protective equipment.
But if the reason for their objection boils down to anti-vaccination beliefs, enforcement of your mandatory vaccination policy is less likely to constitute discrimination. While it is unlawful to discriminate against someone on the basis of a political belief or activity, the courts have interpreted ‘political belief or activity’ narrowly and the category is unlikely to include people who are opposed to their employer’s mandatory vaccination policy. In this case, you may be able to take disciplinary action, including termination of the employee’s employment. BUT following a fair process is paramount! Otherwise you may breach unfair dismissal or adverse action laws under the Fair Work Act – and that is hot water you’re best to avoid diving into.
So what’s the moral of the story?
Just like Microsoft software coding, navigating the legal requirements associated with mandatory COVID-19 vaccination policies is fraught with complexity. Absolutely do not come to us for coding assistance, you’ll only be disappointed. But if you’d like some assistance drafting, interpreting or enforcing your mandatory vaccination policy, get in touch with us at info@laceyandco.legal.
