Vaccine incentives or mandates: Protecting your workforce from COVID-19

With debate intensifying over how to best ‘open up’ our major cities again, many organisations are currently considering incentive-based or mandated schemes for COVID-19 vaccination of their workforces.

Given the Commonwealth Government has so far stopped short of adopting a national policy on mandatory vaccinations, each organisation must approach this difficult issue on a case-by-case basis.

National Cabinet’s agreed approach is that vaccination should be free and voluntary, mandating it only for workers in residential aged care and certain quarantine workers.

The NSW Government recently announced it will soon make vaccinations mandatory for all of the state’s health workers and teachers.

Several high-profile companies, including SPC, Qantas and Jetstar, have already opted for mandated schemes, while others, such as law firm Holding Redlich, are offering paid time off and other incentives to support their workers being vaccinated.

A number of associations and advocacy groups are now calling on the Commonwealth Government to adopt a nationally consistent approach to mandatory vaccination in order to accelerate the vaccine rollout, clarify the state of the law, and provide legal protection to organisations.

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’.

Key considerations

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 and work health and safety laws
• privacy law on the collection and retention of personal information on vaccination status
• potential liability for adverse reactions to vaccines
• 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.

Resources for organisations

To help employers, the Fair Work Ombudsman has released comprehensive guidance on managing vaccinations in the workplace, including a four-step analysis for 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 breaks down workforces into four tiers, and says mandatory vaccination in Tier 1 and Tier 2 is ‘more likely to be reasonable’:

• Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).
• Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).
• Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).
• Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

Fair Work also 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.

Safe Work Australia advises that employers have a duty under the model Work Health and Safety (WHS) laws to eliminate, or if that is not reasonably practicable, minimise the risk of exposure to COVID-19 in the workplace. However, it says ‘most employers will not need to make vaccination mandatory to comply with the model WHS laws’.

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.

The Australian Chamber of Commerce and Industry and law firm Grant Thornton have also prepared helpful employer guides to managing vaccinations in the workplace.

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.

This article is an updated version of our earlier piece here.