Does an employer have the right to mandate a COVID-19 vaccination in order for an employee to be able to remain employed or enter a site? Lawyer Paul Cott offers clear guidelines.

The law in this area varies from state to state, but apart from the Public Health Orders in force in Victoria, the principles set out in this article are applicable to all businesses in Australia, including trade-related businesses.

In Victoria, because of the Public Health Orders in force (which basically have the same status as legislation), by far the vast majority of workers are mandated by law to have the jab and, in fact, to have the COVID-19 vaccine to be able to work at all, and/or work and/or enter a site. It is that simple – unless and/or until the Public Health Orders are set aside, which is by no means certain, they set out the law.

Many of the same principles apply when we are talking about compulsory flu vaccinations, with the necessary differences caused by the fact that COVID-19 and the flu are different illnesses, with many differences in transmissibility and the like. At least with forced flu vaccinations we have some real case law guidance, as three cases have been decided over the last two-to-three years where the Fair Work Commission has said that it can be a valid reason to dismiss someone where the employee refuses a flu vaccine. Those cases were quite fact-specific and involved the employee working with vulnerable people: one case in an aged care centre, and the other in a childcare centre. What the cases often talked about is the concept of ‘inherent requirement.’ That is, is it an inherent requirement of the role that all workers be vaccinated so that they may enter the site, or is it the case that to comply with their work, health and safety obligations (duties an employer owes not only to employees, but also to contractors and visitors to site) all employees must be vaccinated. It is worth noting that if something is an inherent requirement of a role, this is a defence to a discrimination claim. An example may assist. That is, a person with a prosthetic foot may be dismissed from their employment where, because of a permanent foot injury, they cannot carry coffins in the necessary balanced manner that other employees can do.

Commentators have tried to reason by analogy from those cases to say that mandated COVID-19 vaccinations similarly can lead to employment termination where there is a refusal to be jabbed. But it is the view of the author that too much can be taken from these cases in the case of COVID-19. The crux of the issue is whether it is ‘lawful and reasonable’ for an employer to direct an employee to be vaccinated. The lawfulness of such a direction basically comes down to whether the employer is discriminating against an employee, where such discrimination is a ‘protected attribute.’ Protected attributes are things that exist in the anti-discrimination field, such as race, age, pregnancy, religion, sexuality, and the like. Note that vaccination status is not one of the protected attributes as the law currently stands. Nor is it likely to be in the short-, medium-, or long-term future.

REASONABLENESS

The reasonableness of such a direction (or otherwise) is the far more open-ended matter, and the one which links in with the specific facts of the case, such as the location of the workplace, the type of work done by the employee, the type of work done by the business as a whole, and, in particular, the state of the pandemic in the geographical location the workplace is in, as well as the state the workplace is in. The Fair Work Ombudsman has categorised work into four broad categories or tiers for the purpose of assessing the reasonableness of vaccine directives.

Tier 1 workers are workers who work in border control or in quarantine facilities where infection risk is high – they would have to be vaccinated.

Tier 2 workers are workers who have close contact with people who are particularly vulnerable to the effects of the virus, such as in aged care centres, where vaccination status is very important but not as important as Tier 1 workers.

Tier 3 workers are workers who come into contact with the general public on a day-to-day basis, such as retail workers.

Tier 4 workers are workers who have minimal to no contact with the general public, such as people working from home.

With this last category of worker, there would have to be a significant hurdle crossed where the law would say it is reasonable to mandate a COVID-19 vaccine.

However, it would be very likely that the vast majority of trade and/or construction-related businesses, at least in Victoria, would be covered by the Public Health Orders or Directions, and so a COVID-19 vaccine would be compulsory, regardless of what tier they fall into. Outside Victoria, it comes back to the lawfulness (based on non-discrimination) and reasonableness of a direction in the particular circumstances of a particular case. No other definitive guidance than that can be given at this stage – and in any event, even if one was given, due to the dynamic nature of the pandemic, such advice may well have altered by the time this article is read.

DRUG TESTING

A related (often compulsory) requirement in trade-related workplaces is that of the lawfulness of compulsory drug testing on worksites. In short, as an instance of an employer’s strict non-delegable duty of care in an occupational health and safety sense not only to employees, but also to contractors and in fact all visitors on site, such a requirement would likely be legally valid. The same would likely apply to the compulsory wearing of safety gear.

The final thing to address in this article is what an employer ought to do in a given case where an employee indicates that they will or do refuse to be jabbed. The first thing an employer should do is consult with the employee as to the situation as a whole, but in particular as to the employee’s reason for the refusal. If there is a medical reason for refusal, the employer needs to tread carefully to avoid the risk of a discrimination claim being made; that is, that the employment is being terminated not because of the vaccine refusal, but in fact because of the medical issue the employee has – this would be unlawful discrimination, and the employer would risk (in addition to a discrimination claim) a general protections claim against them in the Fair Work Commission. If such a claim were to be proved, significant compensation and/or penalties may have to be paid.