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.
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.
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.
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.
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:
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.
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.