Update: COVID-19 vaccination in the workplace

Many Australian employers and employees will currently be considering the question of how to approach COVID-19 vaccinations in the workforce, and in particular the issue of mandating vaccinations.

Governance Institute considers it is vital that all Australian governments – federal, state, territory and local – work collaboratively with employers, employees and the wider community to support the rollout of approved COVID-19 vaccines in order to save lives.

Highlighting the importance of vaccinations, the Australian Technical Advisory Group on Immunisation (ATAGI) recently outlined how the rapid spread of the Delta strain ‘underscores the importance and immediate benefits of achieving the highest possible COVID-19 vaccine uptake, especially in outbreak areas’.

Vaccines remain voluntary – with exceptions

The Commonwealth Government’s current policy is that receiving a vaccination should be free and voluntary. It has so far stopped short of mandating vaccinations in workplaces, with the exception of aged care.

From 17 September 2021, COVID-19 vaccination will be mandatory for all residential aged care workers, based on advice from the Australian Health Protection Principal Committee (AHPPC).

The mandate is being given legal effect through Public Health Orders in each of the state and territory jurisdictions, rather than through federal regulation. Western Australia, South Australia, Tasmania and Queensland have done this already, and Victoria is expected to do so shortly. The Federal Department of Health is providing regular updates here.

SPC, Qantas and Jetstar are the first employers to attempt mandates outside of Public Health Orders.

A series of roundtables between employer and employee representatives, convened by Attorney-General and Industrial Relations Minister Michaelia Cash, may lead to policy change.

A challenging decision for employers

Currently individual employers must consider their approach to vaccination in the workplace on a case-by-case basis.

This poses a unique challenge for businesses and may expose them to legal risks and industrial relations issues. Equally, failing to act may pose legal, health and other risks.

Arthur Moses SC, former president of the Law Council of Australia, has prepared a legal opinion that says it is ‘clearly arguable that employers whose employees congregate in a shared workplace will be entitled to issue a lawful and reasonable direction to employees to receive the Covid19 vaccine’ provided a number of risk factors are present, such as contact with the public, and with consideration of any individual reasons for an employee declining vaccination.

Organisations will need to consider the regulatory, governance and risk management implications, including any potential interaction with directors’ duties, work health and safety laws, privacy law, unfair dismissal and anti-discrimination laws, the relevant terms of employment contracts, modern awards or enterprise agreements, performance management frameworks, discipline and complaint processes, worker compensation insurance schemes, and other frameworks and regulations.

Guidance for organisations

To help employers, the Fair Work Ombudsman has released comprehensive guidance on managing vaccinations in the workplace, including when it may be lawful and reasonable to require employees to be vaccinated and how to respond if employees refuse.

The Ombudsman advises: ‘… Employers should exercise caution if they’re considering making COVID-19 vaccinations mandatory in their workplace and get their own legal advice.’

Fair Work suggests alternatives to mandatory vaccination, including supporting employees with additional leave or paid time off to get vaccinated, helping ensure employees have access to reliable and up-to-date information about the effectiveness of vaccinations, and exploring other options such as alternative work arrangements where employees do not wish to be vaccinated, or do not yet have access to vaccinations.

The Australian Chamber of Commerce and Industry has also prepared a helpful employer guide to managing vaccinations in the workplace.

The Office of the Australian Information Commissioner has provided guidance on employers’ privacy obligations to staff on their COVID-19 vaccination status, and outlined the privacy rights of employees in this area.

What are the views of the community?

The issue of mandatory vaccinations is likely to attract a range of views, with arguments of public health and safety interacting with issues of individual rights and bodily autonomy.

Three-quarters of Australians would support mandatory COVID-19 vaccination for work, study and travel, according to a study published in May this year by The University of Sydney and The University of Western Sydney.

However, employer and employee representatives – the Business Council of Australia (BCA) and the Australian Council of Trade Unions (ACTU) – have made clear their position that vaccination should be voluntary ‘for the overwhelming majority’ of Australian workers, except for in ‘a small number of high-risk workplaces’ where there ‘may be a need for all workers in a workplace to be vaccinated to protect community health and safety’.

Policy options

The BCA and ACTU are jointly advocating for policy change in this area. In their joint statement, they urge the Commonwealth Government and National Cabinet to implement a ‘nationally consistent’ approach to mandatory vaccination in a limited number of high-risk workplaces using Public Health Orders.

If implemented, this may ease the burden on employers to determine their own workplace policies and clarify the state of the law.

Where to next?

The issue of COVID-19 vaccinations – and in particular, vaccinations in the workplace – is currently a major topic for many organisations.

This update highlights some of the current key issues and latest considerations, but the issue is fast-moving and subject to change.

We will continue to monitor the developments in this area.