Mandatory Vaccination Policies

Since the implementation of Public Health Orders requiring mandatory vaccination to enter the premises of restricted businesses, activities or undertakings, employers and employees have questioned the validity, legality and ethics of enforcing such mandates and perhaps whether mandatory vaccination policies could continue after the expiry of Queensland’s public health emergency for COVID-19 (anticipated to expire on 26 March 2022).

The legality of Public Health Directions was previously discussed in our ‘No Jab, No Job’ blog found here. Here we will review an employer’s right to implement new mandatory vaccination policies to address future pandemics, endemics and/or Public Health Directions relating to mandatory vaccination.

The Fair Work Ombudsman (FWO) has indicated that employers can require employees to be vaccinated in the following circumstances:

• if a specific law requires the employee to be vaccinated (e.g. Public Health Directions); or
• it is required under an Enterprise Agreement, Modern Award, any other registered agreement, or an employment contract; or
• it is lawful and reasonable (assessed on a case-by-case basis)

Employers must consider a number of employment and privacy issues before implementing mandatory vaccinations in the absence of a government mandate.

Lawful and Reasonable

In the absence of government mandates, employers may still mandate vaccinations by issuing a lawful and reasonable direction to employees to be vaccinated, provided that allowance is made for medical exemptions (if possible). A failure to comply with a lawful and reasonable direction may provide employers with a valid reason to dismiss an employee.

Whether a direction is lawful and reasonable should be assessed on a case-by-case basis, and should take into consideration the following factors:

• the health and safety of workers and clients (vulnerability)
• whether alternative measures are adequate to address and protect workers and/or clients
• medical advice or health regulations followed by employers
• the industry of the employer’s business and inherent risks
• the reasonableness of any medical exemptions allowed and/or reasons for failure to comply

Generally, a direction to be vaccinated will be lawful as long as it is not unlawful under any legislation (such as the Fair Work Act 2009 (Cth)) and/or anti-discrimination laws. By way of example, if an employee has a contraindication to a particular vaccine that contains substances which the employee is allergic to, a mandatory vaccination policy relating to such vaccines may be considered discriminatory. However, employers operating in a high-risk industry or environment could reasonably require employees to be vaccinated to address the inherent safety risks to staff and/or clients.

In the case of Glover v Ozcare [2021] FWC 2989, the Fair Work Commission (FWC) found that a policy requiring aged care workers to be vaccinated was lawful and reasonable, noting that the employer’s rights, in addition to its responsibilities to its clients, overrides the employee’s right to decline the vaccination and to remain employed. The decision was ultimately made in consideration of:

• the specific health and safety risks of the workplace;
• the employee’s role; and
• individual circumstances.

Discrimination

In addition to workplace health and safety considerations, mandatory vaccination policies which allow for medical exemptions are unlikely to be discriminatory under State and Federal anti-discrimination laws.

Employers are prohibited from discriminating against individuals based on race, sex, sexual orientation, age, physical or mental disability, family or carer’s responsibilities, pregnancy and/or religion. An employee’s vaccination status or beliefs are not protected attributes under such laws. However, an employer’s refusal to accept an employee’s reasonable and/or valid medical exemption or disability preventing them from being vaccinated may amount to discrimination if there is no reasonable basis for such refusal.

Privacy

Where employers seek to introduce mandatory vaccination policies, the Office of the Australian Information Commissioner has suggested that employers should only collect and record information about an employee’s vaccinations status in limited circumstances, and only the minimum amount of information should be collected to maintain a safe workplace.

Under the Privacy Act 1988 (Cth), employers should only collect and record information in relation to an employee’s vaccination status if (i) the employee consents; and (ii) if such collection and record keeping is necessary for the purposes of the employer’s business.

Consultation

Where an employer believes the implementation of a mandatory vaccination policy will be lawful and reasonable, it must still comply with any applicable consultation obligations under an employment contract, Modern Award or Enterprise Agreement.

In the decision of Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059, the FWC held that the employer’s mandatory vaccination policy was unlawful and unreasonable because of a failure to consult with employees in its workforce. The Full Bench of the FWC outlined that in the absence of a Public Health Direction or express contractual terms relating to vaccination, the legal basis for the employer’s mandatory vaccination policy could only be implied through the employer’s contractual term requiring employees to follow a lawful and reasonable direction of the employer. Despite the object of the vaccination policy being lawful, the employer’s failure to consult under the Work Health and Safety Act 2011 (NSW) made its implementation unlawful and unreasonable. However, the FWC noted that had the employer complied with its obligation to consult well in advance of implementing the vaccination policy, it would have provided a strong case in favour of the vaccination policy being a reasonable direction.

Can I introduce a mandatory vaccination policy?

In short, the answer is “it depends”. As mentioned above, employers should assess the safety and inherent risks to their employees and clients having regard to the employer’s specific business activities, and consider whether it would be lawful and reasonable to introduce a mandatory vaccination policy. Employers are encouraged to obtain legal advice with respect to any proposed mandatory vaccination policy as there is no “one size fits all” solution.

If you are an employer proposing to implement a mandatory vaccination policy and seek legal advice as to the legality and reasonableness thereof, or an employee with concerns about such a policy, please do not hesitate to contact the team at FC Lawyers.