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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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