Mandatory Vaccination and Your Business

In the wake of COVID-19, Australian businesses have been significantly impacted, and in some cases have suffered devastating losses.  Thankfully, prompt and effective quarantining alongside government subsidies (such as JobKeeper) have helped to mitigate the worst effects of the pandemic, preventing the catastrophic damage that has been experienced internationally.  Further, Australia’s vaccine rollout is set to begin early this year, which will provide relief by allowing businesses to return to ‘business as usual’ all the sooner.

At this stage, it is not mandatory in Australia to receive the vaccine.  However, it is expected that some industries will require staff to be vaccinated to continue work. As a result, the vaccine rollout brings with it questions regarding the legality of such a requirement.  Consultation about the vaccine rollout began on Monday, February 1, which will shed light on the complex legal and workplace safety issues surrounding mandatory vaccinations.

The decision to require employees to be vaccinated against COVID-19 could prove to be a complicated legal position, particularly outside the healthcare and aged care industries.  It could be argued that a person following social distancing and hygiene requirements should not be required to get a vaccine to work on a site or in a particular role, and that requiring that they do is discriminatory and infringes the rights of the individual.  This will likely be raised by persons who have religious or political reasons to avoid vaccination, or by those who have medical conditions that prevent them from receiving a vaccine safely.

The current consensus from legal and business experts, including Karl Rozenbergs, partner at Hall & Wilcox, is that an employer’s right to impose a vaccine policy ties strongly into workplace health and safety.[1]  As an employer has an obligation to the health and safety of its employees in the workplace, it may be that a direction that employees be vaccinated forms a lawful and reasonable direction to ensure compliance with that obligation.[2]  Should an employee refuse to follow a lawful and reasonable direction, they can be disciplined and/or terminated by their employer.

Whether the direction to be vaccinated is lawful and reasonable is dependent on the facts; for example, where a role is health-related or client-facing, a direction to vaccinate is likely reasonable.  In an industry with less public interaction, such as in an office building following social distancing, a similar direction may not be considered reasonable. It will almost certainly be necessary in either case to permit exceptions for individuals who cannot be vaccinated on medical grounds, due to their inability to remain in a role, through no fault of their own, if such a direction was issued.

Public opinion is divided on this issue; after Qantas CEO Alan Joyce announced late last year that international travellers would need proof of COVID-19 vaccination to fly Qantas,[3] the company received backlash from the public and were decried by the World Travel and Trade Council for potential discrimination.[4]  As such, a hasty declaration of a vaccination policy is not advisable, even where it makes practical sense to do so.  Once conversations begin with IR Minister Christian Porter and Safe Work Australia, and the guidelines are made more clear, businesses will be in a better position to draft their policies and enforce vaccination rules.  Until then, however, it may be best to encourage, rather than require, your employees to get the COVID-19 vaccine once it becomes available.

[1] Lori Youmshajekian, ‘COVID-19 vaccine won’t be mandatory in Australia, but some industries may demand workers get vaccinated’, Australian Broadcasting Association, retrieved on 26 January 2021 at <https://www.abc.net.au/news/2021-01-21/some-industries-may-impose-their-own-mandatory-vaccine-policies/13074628>.

[2] Nick Bonyhady, ‘Bosses have the power to force employees to take the vaccine: experts’, Sydney Morning Herald, retrieved on 26 January 2021 at <https://www.smh.com.au/politics/federal/bosses-have-the-power-to-force-employees-to-take-the-vaccine-experts-20210101-p56r64.html>.

[3] Samantha Maiden, ‘Qantas CEO Alan Joyce says proof of COVID-19 vaccination will be a condition of international air travel’, News.com.au, retrieved on 27 January 2021 at <https://www.news.com.au/travel/travel-updates/health-safety/qantas-ceo-alan-joyce-says-proof-of-covid19-vaccination-will-be-a-condition-of-international-air-travel/news-story/410d37274bcdbd7adf60db6ca4112a8d>.

[4] News.com.au, ‘Qantas COVID vaccine rule slammed by World Travel and Tourism Council’, retrieved on 27 January 2021 at <https://www.news.com.au/travel/travel-updates/health-safety/qantas-covid-vaccine-rule-slammed-by-world-travel-and-tourism-council/news-story/99bc68c6860cf5d0ebcc34153de05f7c>.