Busi­ness­es are faced with a myr­i­ad of chal­lenges as a result of COVID-19. With the roll­out of the COVID-19 vac­cines, the lat­est chal­lenge of busi­ness­es is decid­ing whether to com­pel their work­ers to be vac­ci­nat­ed.

This is a ques­tion that requires each busi­ness to care­ful­ly con­sid­er its own sit­u­a­tion inde­pen­dent­ly.

What are the duties of a business?

Busi­ness­es have a duty to ensure the health and safe­ty of their work­ers. In addi­tion, they must ensure that the health and safe­ty of oth­er per­sons is not put at risk from their work. This is an exer­cise in elim­i­nat­ing or min­imis­ing risks.

How­ev­er, to ful­fil these duties, busi­ness­es need only take steps that are rea­son­ably prac­ti­ca­ble. This involves weigh­ing up the like­li­hood of the risk, the degree of harm, the knowl­edge about the risk, and the suit­abil­i­ty and cost of pre­ven­ta­tive mea­sures.

Some pre­ven­ta­tive mea­sures have been man­dat­ed by the gov­ern­ment, such as such as masks, QR codes, and hygiene prac­tices. How­ev­er, oth­er mea­sures, such as vac­ci­na­tion, remain vol­un­tary for all except a few busi­ness­es.

Which workers must be vaccinated?

Cur­rent­ly in NSW, only cer­tain quar­an­tine, air­port, and trans­port work­ers must have their first dose of a COVID-19 vac­cine. Recent­ly, Greater Syd­ney con­struc­tion work­ers who are from cer­tain local gov­ern­ment areas must also be vac­ci­nat­ed. In addi­tion, all res­i­den­tial aged care work­ers will be required to have their first dose of the vac­cine by 17 Sep­tem­ber 2021. Exemp­tions are avail­able in all cas­es.

Most busi­ness­es have the dis­cre­tion to decide whether their duty requires them to man­date the vac­cine.

Can businesses make vaccinations mandatory?

In an effort to pre­serve their work­force and ensure trad­ing con­tin­ues for the ben­e­fit of their share­hold­ers, some busi­ness­es have tak­en the hard­line approach of ‘no jab, no job’.

For exam­ple, the Vic­to­ri­an food pro­cess­ing busi­ness, SPC, has recent­ly required all its work­ers to be vac­ci­nat­ed against COVID-19 by 15 Novem­ber 2021. Qan­tas has also expand­ed the gov­ern­ment man­date for air­port work­ers to include all its employ­ees. This reflects a trend that oth­er busi­ness­es may fol­low.

But is such a direc­tion to be vac­ci­nat­ed law­ful? It depends on whether it is rea­son­able.

Fair work laws pro­tect the rights of work­ers, so that a busi­ness can­not use inap­pro­pri­ate pres­sure to mod­i­fy a worker’s employ­ment con­di­tions. How­ev­er, work­ers must com­ply with rea­son­able direc­tions of the busi­ness employ­ing them.

If a busi­ness gives a direc­tion that is not rea­son­able, and ulti­mate­ly dis­miss­es a work­er for fail­ing to com­ply, the busi­ness may be at risk of an unfair dis­missal or unlaw­ful dis­crim­i­na­tion claim being brought against them.

Is a direction to be vaccinated reasonable?

Rea­son­able­ness requires a close exam­i­na­tion of the facts of each sit­u­a­tion. Busi­ness­es must bal­ance their duty to ensure the safe­ty of their work­ers and a worker’s right to make deci­sions about their health.

To deter­mine whether manda­to­ry vac­ci­na­tion is rea­son­able, busi­ness­es should con­sid­er the fol­low­ing:

  1. The like­li­hood of its work­ers being exposed to COVID-19, con­sid­er­ing the type of work per­formed and the com­mu­ni­ty trans­mis­sion in the imme­di­ate sur­round­ings;
  2. The like­li­hood of putting oth­er per­sons’ health at risk, name­ly by work­ing in close con­tact with the vul­ner­a­ble.
  3. The degree of harm to a work­er or oth­er per­son if they con­tract­ed COVID-19.
  4. Whether the risks can be min­imised by oth­er mea­sures, such as wear­ing masks and social dis­tanc­ing.
  5. The effec­tive­ness of manda­to­ry vac­ci­na­tion, con­sid­er­ing the avail­abil­i­ty of vac­cines and the vac­cines’ effec­tive­ness in pre­vent­ing trans­mis­sion and seri­ous ill­ness.
  6. The risks of manda­to­ry vac­ci­na­tion, includ­ing the vac­cines’ adverse side-effects, work­ers’ objec­tions, and the risk of legal action.

The Fair Work Ombuds­man has recent­ly pro­vid­ed guid­ance on the like­li­hood that a direc­tion would be con­sid­ered rea­son­able, effec­tive­ly class­ing indus­tries into four tiers. How­ev­er, each sit­u­a­tion needs to be assessed on a case-by-case basis.

What is deemed rea­son­able may also shift as more infor­ma­tion around the vac­cine and the virus becomes increas­ing­ly avail­able.

Should businesses make vaccinations mandatory?

Even if a busi­ness can direct its work­ers to be vac­ci­nat­ed, on the grounds of rea­son­able­ness, it is worth con­sid­er­ing whether it should.

As the COVID-19 out­break in NSW unfolds, researchers and gov­ern­ments are still try­ing to under­stand the trans­mis­si­bil­i­ty of the virus and effec­tive­ness of the vac­cine. This has been reflect­ed in the government’s chang­ing health advice.

By man­dat­ing the vac­cine, busi­ness­es open them­selves up to a risk of legal action being brought by its work­ers, includ­ing com­pen­sa­tion claims for adverse side-effects of the vac­cine, unfair dis­missal claims and unlaw­ful dis­crim­i­na­tion claims.

It appears the safer route for busi­ness­es is focus­ing on the exist­ing con­trol mea­sures and allow­ing work­ers to make their own health deci­sions based on the avail­able and emerg­ing evi­dence.

If your busi­ness is con­sid­er­ing man­dat­ing COVID-19 vac­ci­na­tion for its work­ers, you should seek legal advice spe­cif­ic to your sit­u­a­tion. It is also impor­tant to allow for appro­pri­ate exemp­tions to mit­i­gate the risk of claims.

If you require any further advice regarding your specific business, please do not hesitate to contact the team at Donovan Oates Hannaford.

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