In this circular we discuss implementing a mandatory COVID-19 vaccination policy for staff at your Practice: your rights as an employer, WHS law and advice for Practices.
Can you make it mandatory?
At present, employers cannot require employees to take the vaccine. This is consistent with the official advice of the Fair Work Ombudsman and Safe Work Australia, which is that most employers should assume that they will not be able to require their employees to be vaccinated. That said, employers are still able to strongly encourage and support their staff to take the vaccine, so long as they don’t make it a condition of their employment.
Your rights as an employer
An employer can only issue a (mandatory) direction if it is lawful and reasonable. A direction will be lawful if it complies with any contract, award or agreement, and any Commonwealth, state or territory law that applies (for example, an anti-discrimination law).
Currently, there is no legislation at Federal or State level which would be inconsistent with requiring employees to be vaccinated. The question of whether employers can require their employees to be vaccinated will therefore depend on whether it would be ‘reasonable’. Whether a direction is reasonable depends on the circumstances of the particular case, including the nature of the work the employee is engaged and the current medical advice relating to vaccination.
The cases thus far, all of which involve an employee’s refusal to receive the flu vaccine, suggest that it more likely that a mandatory vaccine policy will be lawful and reasonable where there is a higher risk of contracting the COVID-19 virus (e.g. hotel quarantine) or a higher risk of serious illness or death (e.g. aged care). For example, in Ms Bou-Jamie Barber v Goodstart Early Learning [2021], the Commission found that a mandatory flu vaccination policy in a childcare centre was lawful and reasonable because it was necessary to fulfil its obligations with respect to the health and safety of the children in its care. In Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021], a receptionist working in an aged-care facility worker was dismissed for refusing to receive a mandatory flu vaccination due to a previous allergic reaction. The policy was held to be lawful and reasonable because it was necessary to comply with a public health order which required aged-care workers in NSW to be vaccinated.
There are three reasons in particular to be cautious about applying these recent cases to justify a mandatory COVID-19 vaccination in healthcare practices. First, the cases involved a mandatory vaccine for the flu rather than COVID-19. At present, the presence of COVID-19 in the community is less than that of the flu, meaning that the risk of contracting COVID-19 is lower. Second, unlike for the flu, there are currently very few public health orders (either at the Federal or State level) which mandate the COVID-19 vaccine. So far, only Queensland and Western Australia have issued Public Health Orders requiring some workers to be vaccinated. Third, these cases related specifically to childcare and aged-care, rather than healthcare practices.
Unless the situation or official advice on vaccinations changes, practices should take a cautious approach and assume that a mandatory COVID-19 vaccination policy would be unlawful. This means that if an employee were to be dismissed for refusing to be vaccinated, it would likely make the employer liable for unfair dismissal and possibly discrimination and workplace compensation claims.
WHS Law
Practice owners and managers must also bear in mind their obligations under WHS laws. These laws impose a duty to eliminate or, if elimination is unfeasible, minimise, so far as is reasonably practicable, the risk of exposure to COVID-19 in the workplace. At present, it is unlikely that WHS law requires that workers be vaccinated because:
- Public health experts, such as the Australian Health Protection Principal Committee have not recommended a vaccinebe made mandatory in any industries
- The fact that there is minimal community transmission throughout Australia means that most workplaces will be considered ‘low-risk’
Advice for Practices
To best mitigate risk and meet your WHS obligations, you should adopt ClinLegal’s policy in respect of COVID-19 vaccinations. This policy clarifies that, unless health advice or the law changes, staff are to be strongly encouraged and supported to receive the COVID vaccine, due to the clear health and safety benefits it provides. Staff should be supported by being given time off to receive the vaccine and reassurance that their refusal to take the vaccine will not impact their employment.
If you have any questions about implementing a vaccine policy in your practice, or anything else discussed in this article, feel free to reach out to us on [email protected].
This Circular is produced for guidance purposes only and is not a substitute for legal advice. Legal advice should be sought for individual circumstances. For tailored advice for your Practice, please contact us.