Vaccine mandates in an uncertain COVID environment

By Costa Brehas, Senior Workplace Relations Adviser.

Organisations have essentially been left to fend for themselves when it comes to deciding whether to continue mandating COVID vaccinations for employees. Costa provides insights into the legal standpoint and what steps need to be taken to assess risk and determine the potential need to continue to mandate vaccinations.

An end to vaccine mandates

Currently in Australia, with limited exceptions relating to certain industries (such as aged care, health care and schools), there are no longer public health orders/directions issued by governments requiring employers to ensure their employees are vaccinated against COVID.

This does not mean that employers no longer have to worry about their employees being vaccinated against COVID.

Until there is general consensus within the medical community i.e., the World Health Organisation and the Australian Technical Advisory Group on Immunisation, that COVID no longer presents a significant risk to people, employers continue to bear the risk of their employees and customers becoming infected with COVID in their workplace. As such, employers have a duty to take reasonable measures to address those risks.

The Legal Standpoint

There have been a number of decisions in the Courts and in the Fair Work Commission which have deemed that employers take a reasonable approach to requiring employees to be vaccinated against COVID.

These decisions have focused on the reasonableness and lawfulness of the direction.

In determining whether such a direction is ‘reasonable and lawful’, in the absence of any governmental mandates, key factors to be considered are whether the direction complies with:

• an underlying industrial instrument (i.e. a Modern Award or Enterprise Bargaining Agreement),
• a contract of employment and relevant laws (e.g. laws relating to health and safety and discrimination)
• as well as common law obligations (i.e. duty of care).

Next steps

Best practice dictates that employers take the following steps to assess whether it will be reasonable to issue directions requiring employees to be vaccinated against COVID:

Step 1:  Consult with employees about the risks of COVID infection in the workplace and the potential introduction of a vaccine mandate.

Consultation is essential given that this relates to a health and safety issue and is usually mandated by state and federal safety legislation. It also provides employees with an opportunity to contribute to the risk assessment and decision-making process which often makes the process of introducing a vaccine mandate more palatable.

Consultation should take place at each stage of the risk assessment process and on an ongoing basis, particularly where there is any change of circumstances (such as a new COVID variant circulating in the community).

Step 2:  Undertake a health and safety audit to identify the risks of COVID infection in the workplace.

Ideally, this audit should be undertaken by a qualified professional and should include the following:

a) Identify the level of COVID risk based on the industry and working environment. In this regard, the following information which has been extracted from the website of the Fair Work Ombudsman provides a useful starting point:

• Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with COVID-19 (for example, employees working in quarantine or border control).
• Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of COVID-19 (for example, employees working in health care or aged care).
• Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment.
• Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).
  

b) Identify the likely level of risk of COVID infection in the workplace, taking into account whether there are any workers who are particularly vulnerable to infection due to factors such as age and/or specific health conditions (e.g. if there are workers who are immunocompromised). This will require workers to volunteer information about themselves on a confidential basis. Naturally, that information should be retained by the employer on a strictly confidential basis. The employer should also have policies in place about how that information is to be used and stored which should be communicated to workers before they are requested to disclose their personal information.

c) Examine the adequacy and effectiveness of existing measures to minimise the risk of COVID infection– Such as physical distancing, hygiene practices (including hand sanitising stations and wearing protective face masks) and air filtration.

d) Consider the number of COVID vaccines that workers will be required to have (if the audit determines that this is necessary).

Finally, present the findings of the audit to workers as part of the consultation process and decide whether to introduce a policy containing a COVID vaccination requirement.

Step 3:  Establish a COVID policy (which may include the requirement of being vaccinated)

Present a draft policy to workers to consider as part of the consultation process before formally introducing the policy. Ideally, this policy should be prepared by someone who is skilled in the preparation of policies.

If the policy includes a requirement that workers must be vaccinated against COVID, it should also address what can happen if workers refuse to be vaccinated without having a valid reason.

Importantly, education or training needs to be provided to all employees about the policy and this should be continued on a periodic basis.

Step 4:  Consider exceptional circumstances of individual employees

Any directions to employees to be vaccinated against COVID should be in accordance with the policy that the employer has introduced. If an employee refuses to comply or is unable to comply with those directions (particularly where they may have genuine medical or religious grounds which may prevent them from being vaccinated), the employer should discuss these issues with them and consider whether there are any reasonable measures it can take to accommodate them.

Reasonable measures that can be considered may be:

• temporary (such as agreeing to relocate them to another department pending the resolution of a health concern)
• permanent (such as agreeing that they may work from home – if the nature of their work allows this).

If, after all reasonable measures to accommodate employees who cannot comply with a COVID vaccination direction have been considered and an employee still refuses to be vaccinated or is unable to do so, the employer should provide the employee with a written outline. This needs to include all the steps that have been taken to accommodate the employee (or why it may be impractical to do so) and what the likely outcomes will be (particularly where this may result in dismissal).

If this process is followed, employers will be in a strong position to argue that a direction to be vaccinated is lawful and reasonable and to take appropriate action.

iHR Australia can provide the advice and support you need to create a COVID policy.

About the Author

Costa is an experienced workplace relations practitioner having also previously practised as a lawyer for over 25 years.

Costa has acted as in-house legal counsel for peak employer organisations, has practised as a Senior Associate in the workplace relations departments of reputable mid-tier law firms and provided consultancy services across the entire spectrum of workplace relations issues. Costa has acted in numerous unfair dismissal matters, general protections applications, anti-bullying proceedings as well as discrimination, equal opportunity and sexual harassment disputes.

Costa has conducted complex workplace investigations into a variety of workplace disputes and complaints and has prepared comprehensive investigation reports. He has successfully mediated workplace disputes and has direct experience working within the human resources area of an international educational institution. His skills and years of experience in a diverse range of environments place Costa in a unique position to provide his services in an effective and efficient manner.

Costa holds a Baccalaureus Procuration is Law Degree. He was admitted to practise as an Attorney of the Supreme Court of South Africa in 1993 and as a Barrister and Solicitor of the Supreme Court of Victoria in 2002.