What are the safety and employment issues for consideration regarding the vaccines?
We set out below key questions and answers regarding the safety and employment issues for consideration regarding the vaccines.These issues primarily arise under work health and safety laws which (for most organisations) are state laws.
As this is an area which may be subject to legislative and regulatory change at short notice, it is critical that organisations continue to review and apply the guidance provided by Government (including public health orders, advice from the AHPPC and guidance from Safe Work Australia, the Fair Work Ombudsman, and state and territory work health and safety regulators).
It is currently anticipated that most people in Australia will be vaccinated sometime between now and early 2022. However, Australian employers are being advised that a COVID-19 risk is likely to remain for several years to come, and that there will be a version of ongoing vaccination requirements, travel restrictions, and workplace restrictions that will continue to apply throughout that period.
What is the Government stance regarding vaccination?
The Federal Government’s stated policy is that state and territory governments may introduce public health orders making COVID-19 vaccination a requirement in order for workers to enter certain types of workplaces.
At the time of publication, there are a small number of state and territory public health orders mandating vaccination for certain workers involved in the quarantine and health service industries. The Federal Government has also received advice from the AHPCC that all residential aged care workers should be required to be vaccinated. A list of the current public health orders requiring workers to be vaccinated is available on Safe Work Australia’s website (see here).
Can employers require their workforce to be vaccinated?
A vaccine requirement could be imposed:
- where legislation or an applicable public health order makes vaccination mandatory for workers in certain industries;
- where there is a pre-existing contractual requirement regarding vaccination – this is unlikely to be the case for most businesses; and
- where a health and safety risk assessment indicates that this requirement is a reasonably practicable measure to minimise the risks of COVID-19 transmission and infection in the workplace.
At the time of publication the guidance from Safe Work Australia (SWA) (see here) and the Fair Work Ombudsman (see here) remains that, for most employers, it is unlikely a requirement for workers to be vaccinated will be reasonably practicable.However based on the following factors, we consider that a requirement for workers to be vaccinated (at least one dose) is likely to be reasonably practicable in an increasing number of workplaces, provided that the requirement includes appropriate health, religious (and potentially other exemptions, such as that the worker is booked in for the vaccine):
- the outbreak of the Delta variant of coronavirus across Australia and the higher level of infectiousness of the Delta strain, rendering existing control measures less effective;
- the greater proportion of people who have already received one dose of a vaccine (and the greater current accessibility to the vaccines); and
- the knowledge about the impact of vaccines on infection and transmission risks (arising from the many millions of doses that have been administered around the world).
The risk assessment must take into account the specific facts of the business and activities. Safe Work Australia has said that when deciding whether it is reasonably practicable to introduce a vaccination requirement in your workplace, the following factors need to be assessed on an ongoing basis:
- Is the Australian Health Protection Principal Committee recommending COVID-19 vaccinations for all workers in your industry?
- Will your workers be exposed to the risk of infection as part of their work?
- Do your workers work with people who would be vulnerable to severe disease if they contract COVID-19?
- What is the likelihood that COVID-19 could spread in the workplace? For example, some work tasks may require your workers to work in close proximity to each other.
- Do your workers interact with large numbers of other people in the course of their work that could contribute to a ‘super-spreading’ event if your workers contract COVID-19?
- What other control measures are available and in place in your workplace? Do those control measures already minimise the risk of infection, so far as is reasonably practicable?
- Would a requirement to be vaccinated be unlawful in the circumstances? For example, would it discriminate against a class of employees?
What obligations do businesses have under work health and safety law?
Under work health and safety laws, organisations have a primary duty of care to ensure the health and safety of workers (employees and contractors) so far as is reasonably practicable, and to ensure that the health and safety of other persons (eg customers and suppliers), is not put at risk from the conduct of the business or undertaking. In order to meet this duty of care, organisations must:
- Undertake a risk assessment of exposure to COVID-19 from their business activities;
- Consider the available control measures and how they will help to manage the risks of COVID-19, including information regarding the accessibility and efficacy of the vaccines and any risks to health and safety associated with the vaccines;
- Consult with workers and health and safety representatives about COVID-19 and relevant control measures, including the vaccines; and
- Determine what control measures are reasonably practicable.
Obligations under work health and safety law are discussed further the Safe Work Australia Guidance (see here).
How would a vaccination requirement be implemented?
If a risk assessment indicates that a requirement to be vaccinated is reasonably practicable, the requirement may be implemented as a condition of entry to premises within the organisation’s management and control, or as a requirement for workers to be engaged in a certain activity or project. For example, an organisation commissioning an infrastructure project in a remote area that involves interaction with vulnerable people (traditional owners) could include a vaccination requirement in the construction contract with the builder, which provides that the builder must ensure persons who enter site are vaccinated (with appropriate exemptions based on health and religious grounds, and appropriate practical grounds).
An employer’s ability to impose a vaccination requirement on its individual employees would depend on the contract of employment, including the implied term in every employment contract under which the employee is obliged to comply with the lawful and reasonable directions of an employer that falls within the scope of employment. Further guidance is provided by the Fair Work Ombudsman here.
Would non-compliance with a vaccination requirement be lawful grounds for dismissal?
Where an employee disobeys a requirement properly given under an express or implied term, then he/she may legitimately be the subject of disciplinary action including dismissal. However enforcing compliance with any vaccination requirement would need to be carefully managed, to minimise the prospect of unfair dismissal and / or adverse action claims under the Fair Work Act.
As an alternative to requiring employees to be vaccinated, can employers strongly recommend that all employees receive the vaccination?
Any recommendations about the need for vaccination should be based on a risk assessment that takes into account the specifics of the workforce (for example, the factors referred to under Can employers require their workforce to be vaccinated?).
SafeWork Australia’s guidance is that employers can encourage workers to get a COVID-19 vaccination if they are able to. SafeWork Australia says this can be done by directing them to the Department of Health website or employers can also develop their own informational material, provided that it meets the conditions outlined in the guidance published by the Therapeutic Goods Administration (TGA) (see here).
The TGA guidance provides that organisations may provide rewards and incentives to people who have been fully vaccinated, however organisations should have regard to the risks arising from an incentivisation or reward program and must ensure that any incentive offered is considered, reasonable and proportionate in order to avoid any confusion regarding the voluntary nature of receiving a vaccination (unless the organisation’s risk assessment supports the introduction of a mandatory vaccination requirement). A disproportionate incentive offered to a worker may create a liability risk in the event the vaccination causes harm to a recipient and the organisation has encouraged the vaccination, or the recipient expressed that they only received the vaccine due to the organisation’s incentive.
Can employers require staff who have not been vaccinated, to continue to work from home until advised otherwise?
If a public health order or an organisation’s risk assessment supports a requirement for staff to be vaccinated in order to attend the workplace, the organisation can require staff to work from home if they are not vaccinated.
Can an employee refuse to attend a workplace if other co-workers are not vaccinated?
Current guidance from Safe Work Australia and the Fair Work Ombudsman is that it is unlikely that an employee could refuse to attend their workplace where a co-worker isn’t vaccinated against coronavirus. This guidance may change if the corona virus risk increases, and vaccination accessibility also increases.
Could employers require employees to provide proof of vaccination or a vaccination certificate?
An employer may request this information, but unless the employer’s risk assessment supports the introduction of a mandatory vaccination requirement, it would not be reasonable to require an employee to provide this information if the employee does not wish to volunteer it.
If the employer’s risk assessment supports the introduction of a mandatory vaccination requirement, the employer may issue a lawful and reasonable direction to employees to provide information about their vaccination status.
Can organisations ask for proof of vaccination for persons entering the business?
Organisations will have a lawful basis for imposing a vaccination requirement on customers and visitors (and requiring proof of vaccination) where the organisation’s risk assessment concludes this is a reasonably practicable risk control measure. Safe Work Australia has provided a list of factors that should assessed on an ongoing basis when deciding whether a vaccination requirement is a reasonably practicable risk control measure – see Can employers require their workforce to be vaccinated? above.
Can an employer keep records of who has and has not been vaccinated?
Yes, if employees agree to disclose this information. Employers should ensure that confidentiality be maintained over any such record and that there is no unlawful discriminatory action towards vaccinated or unvaccinated employees.
Can employers organise for vaccinations to be given at their worksites?
At the time of publication, the Australian Government has commenced discussions with business leaders regarding the possibility of vaccinations being given at workplaces. This is currently only an option that is available at limited types of workplaces (such as aged care facilities).