Mandatory Vaccinations in the Workplace

With much of Australia now locked down and under restrictions, health and Government officials are citing vaccination as Australia’s way out of the COVID-19 pandemic.

Many employers are heeding this call, and proposing incentives or even mandatory vaccination policies to do their bit, but the question on every employer’s mind is - is this legal?

We have put together this Q&A to better assist employers in understanding what they can and can’t do around vaccinations.

Can I implement a mandatory vaccination policy for my workforce?

In short, it depends.

This is because the test will be whether the direction to get a vaccination is a “lawful and reasonable direction”, and this will be based on your exact circumstances as a particular employer.

In light of the above, employers will need to weigh up a range of factors in relation to its own circumstances (i.e. the type of work your employees are performing, how much contact they have with vulnerable groups, the availability of vaccines, the level of community transmission in your area etc.) to determine whether a mandatory vaccination policy is reasonable. Otherwise, this may open them up to reputational, legal and financial risks, including a discrimination claim.

The Fair Work Ombudsman has recently put out further information on this topic for employers at https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace but we strongly recommend obtaining tailored legal advice before implementing a mandatory vaccination policy.

What happens if an employee refuses to comply with our mandatory vaccination policy?

If the direction was lawful and reasonable (in line with the above test), and an employee fails to comply, we recommend that you speak with the employee and work out why they have not complied. You should then genuinely consider their response before determining what to do. For example, if they don’t have a valid reason, you can take disciplinary action against them and issue them with a second direction. If they claim that they can’t get vaccinated for medical reasons, you may be able to ask for further evidence to showcase this. We recommend that you seek legal advice before taking disciplinary action against an employee refusing to get vaccinated.

Can I set up my documentation to more safely implement a mandatory vaccination policy?

Yes, and a mandatory vaccination policy will always be safer if certain elements are reflected in the relevant employment contracts, position descriptions and policies. Therefore, we recommend that these documents are reviewed to better cover off an organisation’s risks and liabilities.

Can I tell employees that we expect / encourage all employees to get vaccinated?

Yes, although if you want to go with this approach, we recommend that you specifically encourage “all eligible employees to receive a COVID-19 vaccine as recommended by the Government, and on the advice of a health practitioner”. This wording will better protect the organisation and is line with the regulations discussed below.

Can I provide incentives to my employees to get vaccinated?

Yes, but how you communicate and distribute any incentives must be done in a certain way.

For example, the Therapeutic Goods Administration (TGA) has recently issued guidance on how employers can advertise incentives to their staff in exchange for receiving the COVID-19 vaccine at https://www.tga.gov.au/communicating-about-covid-19-vaccines. This includes referring to the vaccine in a particular way, not using certain rewards as incentives, and not preferencing one vaccine over another.

What are the risks for my business?

The primary risk that employers face by implementing a mandatory vaccination policy is likely to be an employee claim, including an unfair dismissal, general protections claim or a discrimination claim. These can result in significant penalties, compensation and both company and personal liability.

Contact

Please get in touch with our Employment + Workplace Relations Team if you have any questions or concerns around implementing mandatory vaccinations in your workplace.