Factors to Consider Before Implementing a Mandatory COVID 19 Vaccination Policy

It is hard to think of a time when so many contentious issues have involved the workplace. It is one of those hot button issues that sets personal freedoms against the safety of the community.  Setting aside the question of whether vaccinations are effective, safe, needed, sufficiently tested, etc, employers, who have legal responsibilities to employees, customers, and members of the public alike, must decide about implementing a mandatory vaccination policy in a world of conflicting opinions. 

When deciding about a mandatory COVID-19 vaccination policy, an employer should note the Federal Government maintains that accessing the COVID-19 vaccination remains voluntary for most Australians. However, different State governments, industries and large employers have stated that vaccinations will be mandatory for all or a defined portion of their staff. As a result of this changing landscape, some employers can require employees to receive the COVID-19 vaccine. 

Express employment terms 

An employment relationship is primarily governed by the express terms of the contractual relationship and the implied condition that an employee must comply with lawful and reasonable directions. 

If your workplace employment contracts require your employees to adhere to policies set by you from time to time, specify the location of the employee’s job so that you can demonstrate the need for the vaccination based on the location of the employee’s job, and/or vary the employee’s duties to include duties that would necessitate vaccination, then such express terms will make it easier for you to demonstrate your power to give a direction to an employee to have the COVID-19 vaccine. They also make it easier for an employer to show the reasonableness of such a direction by linking it to the safety of your employee’s work location or duties. 

When deciding about a mandatory vaccination policy you must consider, on a case-by-case basis, such things as an employee’s role, their duties, and the risks associated with their work, the nature of the workplace (are the employee’s roles public facing or remote), the extent of community transmission, the terms of any Public Health Orders and your work health and safety obligations.  These things will affect your ability to impose a mandatory vaccination policy. 

Public health orders 

State Health Ministers have powers to take such action and give such directions as the Minister considers necessary to deal with a risk to public health. These are generally known as ‘Public Health Orders. Employers have a duty to ensure the vaccination of its employees affected by public health orders. When the Supreme Court of New South Wales handed down its decision in the test case of Kassam v Hazzard; Henry v Hazzard, it made it clear that public health orders requiring mandatory COVID-19 vaccinations are unlikely to be overturned by the Courts. 

The existence of a public health order affecting you or your employees allows you to demonstrate it was lawful and reasonable for you to make directions to your employees about mandatory COVID-19 vaccinations. 

Fair work act 2009 

In addition to the express and implied terms of an employment contract, there are rights and responsibilities imposed on the employment relationship through the Fair Work Act 2009 (the Act), National Employment Standards and Modern Awards.  In so far as the issue at hand is concerned, certain employees covered by the Act have the right under the National Employment Standards to request flexible working arrangements. Further, Modern Awards introduced by the Act, place an obligation on employers to consult with employees regarding a major workplace change, such as a mandatory vaccination policy, and to engage in certain dispute resolution processes as set out in the Modern Award.

Employers who impose a mandatory vaccination policy must be aware if an employee is terminated by their employer for non-compliance with the policy and the dismissal was ‘harsh, unjust or unreasonable’, the provisions of the Fair Work Act will step in to provide certain remedies and compensation to the employee. There are other solutions to termination that may need to be explored by you.

Work health and safety acts 

State/Territory Work Health and Safety Acts place specific duties on both employers and employees with respect to securing the health and safety of workers and workplaces. In relation to employers, this includes maintaining a safe workplace and ensuring, so far as reasonably practicable, the health and safety of workers. Employers are also required to undertake certain consultation with workers when identifying hazards, assessing risks, making decisions, and proposing changes that may affect the health and safety of workers. 

Where does this leave you? 

In deciding whether you need to introduce a mandatory vaccination policy employers must start with a risk assessment and identify ‘why’ this is the best way to manage COVID safety in the workplace. A policy of ‘encouragement’ may be a better way to go. Taking on more than your minimum legal responsibility may be difficult to police and manage in your workplace and expose you to liability that you do not need to take on. As a starting point, there are great online resources on the Fair Work Commission website and the Fair Work Ombudsman website.

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