With the current troubling Covid-19 cluster in NSW, and a deep concern about the relatively low rates of vaccination of staff in some industries which deal with the sick and the vulnerable, most notably aged care, the issue of mandatory workplace vaccination has gone from being an interesting theoretical consideration to a matter of immediate practical concern.

This concern resulted in a National Cabinet Statement, issued on 28 June 2021, in relation to workers in aged care:

"The National Cabinet agreed to mandate that at least the first dose of COVID-19 vaccine be administered by mid-September 2021 for all residential aged care workforce.

The National Cabinet agreed that COVID-19 vaccinations are to be mandated for residential aged care workers as a condition of working in an aged care facility through shared state, territory and Commonwealth authorities and compliance measures."

Here are some observations on various recent developments relating to mandatory workplace vaccination.

The Role of Government

Some industries and employers have asked that governments (whether state or federal) issue a mandate that staff in their industry must be vaccinated against Covid-19. For example, following the directive that aged care workers must be vaccinated against Covid-19, there were calls to mandate a similar requirement for disability support workers (an approach rejected by National Cabinet when it met on 9 July 2021).

Along similar lines, some other employers have cited a lack of government mandate as the reason why a significant percentage of their staff have not been vaccinated to date.

In short, however, the lack of a government mandate or order for staff in a particular industry to be vaccinated does not necessarily preclude an employer, at its own initiative, mandating Covid-19 vaccination for its staff. It is an option that will be open to some employers, particular in industries such as aged care and health care. Employers need not (and should not), in effect, outsource the decision to government. To some extent, both employers and government have been looking to the other to expedite the vaccination roll-out process in workplaces where Covid-19 risk mitigation measures are critical. Ultimately the legal risk lies with employers.

An employer can potentially mandate vaccination pursuant to its right to issue 'lawful and reasonable' directions to employees. A failure to adhere to a lawful and reasonable direction can result in disciplinary action against an employee, including termination of employment. To be in a position to issue such a direction, an employer needs to be able to demonstrate that vaccination of employees is an important control measure to protect staff, clients and members of the public who interact with the workplace from the risk of Covid-19 infection. This would, of course, largely depend on the nature of the employer's business or undertaking and the inherent duties of the employees who would be subject to the mandatory vaccination direction. The critical question in relation to those employees: can they perform the inherent duties of their position safely without being vaccinated against Covid-19?

An additional consideration for employers is whether there are any extenuating circumstances that would make a mandatory vaccine direction unreasonable and therefore unlawful in respect of a particular employee. For example, there may be some employees who have a medical condition that prevents them from receiving a particular type of Covid-19 vaccine or a Covid-19 vaccination generally.

There have been three recent Fair Work Commission unfair dismissal decisions that considered mandatory flu vaccinations, each of which found in favour of the right of employers to mandate such vaccinations in the circumstances of each case.

By way of illustration, in one of those cases, Ms Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156 (Barber), Deputy President Lake examined whether the direction given by the employer to an employee working in child care was "reasonable" by considering factors such as government recommendations; the need to ensure safety and welfare; control methods (which were found to be difficult to implement given the age and lack of maturity of children in care - hence the importance of employee vaccination as a control measure); whether the vaccination policy was reasonably and appropriately adapted (taking account of medical exemptions); union consultation (which was given little weight); and implementation (including ample time to achieve compliance or raise an objection).

Deputy President Lake concluded that the employer requirement to be vaccinated was reasonable (at paragraph 346):

"Goodstart operates within a highly regulated environment, which creates statutory obligations beyond that of a normal employer; safety and quality care are of paramount importance and this is the environment in which Goodstart's policy must be scrutinised. The childcare industry faces unique organisational challenges which make other controls less effective, or impracticable. I am satisfied that it is reasonable for a childcare provider to mandate flu vaccination for those staff who deal with children on such a regular basis, and in such close proximity. While the policy requires mandatory vaccination, it does allow for medical exemptions and Goodstart covered the expenses associated with the policy and provided extended time frames for Ms Barber to gain compliance. I am satisfied that 'a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy."

For the sake of completeness it should be noted that Deputy President Lake was at pains to caution against using this decision, which related to flu vaccination and turned on its own facts, as a guide for Covid-19 vaccination. With respect to his Honour, however, it is very likely that similar general principles will apply, albeit to a different set of circumstances, in the context of Covid-19 vaccinations.

Of course, if an employer forms the view it needs its employees to be vaccinated to manage the Covid-19 safety risk, it makes strategic sense to seek the government mandate it. Such a mandate will largely defeat an argument advanced by an employee that a vaccination direction from an employer will not be lawful and reasonable. It also ensures a consistent and practical approach across an industry, so that a responsible employer is not placed at a competitive disadvantage in attracting or retaining staff to an employer which does not insist on vaccination.

If an employer, however, wants to implement a policy of mandatory workplace vaccination, the absence of a government mandate will not, of itself, be fatal to that policy. It might still be able to proceed. Employers are not totally dependent on the position adopted by the government. That position has, to date, been to actively encourage rather than mandate vaccination, consistent with the broader community messages relating to Covid-19 vaccination. This is also broadly reflected in the positions adopted by agencies such as Safe Work Australia and the Fair Work Ombudsman.

A meeting on 7 July 2021 between some of Australia's largest and most prominent employers and the federal Treasurer explored ways in which those businesses could help accelerate the vaccine roll-out, including vaccinating staff (on a voluntary basis). While mandatory vaccination might arguably be an option for many employers (including, potentially, those in retail or hospitality), the overwhelming preference of large employers presently seems to be to encourage, rather than compel, Covid-19 vaccination, in industries where it is not critically imperative. This approach makes sense for both practical and workplace cultural reasons.

The AstraZeneca Perception Problem

In order to effectively mandate vaccination for employees, vaccines need to be available to them.

The vaccine that is readily available, AstraZeneca, is not recommended by the Australian Technical Advisory Group on Immunisation (ATAGI) for those under 60 years of age. That has changed; it was originally not recommended by ATAGI for those under 50 years, which then became 60.

A direction from an employer to its employees under 60 years of age to have a Covid-19 vaccination, where the only vaccine available to those employees in the time frame stipulated for compliance is AstraZeneca, will almost certainly not be held to be reasonable in light of the ATAGI advice.

What about employees over 60 years, for whom AstraZeneca is recommended by ATAGI? The flu vaccination cases show that, in considering whether a mandatory vaccination direction is reasonable, the Fair Work Commission will closely examine the objective merit of an employee's arguments that they cannot be safely vaccinated. This will include a forensic consideration of the medical evidence relating to that employee and the broader scientific evidence pertaining to the vaccine itself.

Even though the Fair Work Commission has shown it is disinclined to support an employee's vaccine hesitancy, even when based on a belief the employee genuinely holds about the harm the vaccine might do to them, where an employee over 60 indicates they are willing to have a non-AstraZeneca vaccine (such as Pfizer or Moderna) but not AstraZeneca, query whether the commission would consider a termination of employment based on a failure to follow the direction within a time frame during which only AstraZeneca is available, to be fair. Rightly or wrongly, many people in that age bracket are concerned by AstraZeneca, and in Fair Work Commission proceedings would be able to cite the shifting advice from ATAGI and some reported statements made by health officials, as a basis for that concern. The employee would argue that they aren't vaccine hesitant (as in refusing to have a Covid-19 vaccine at all), but rather exercising prudent vaccine preference, concerned about being (due to availability) effectively forced to have a type of the vaccine with which they have serious reservations.

Unless the employer could demonstrate that it was imperative the vaccination for an employee in the category described above be undertaken before a non-AstraZeneca alternative was available, and that a way of avoiding the termination of employment until that occurred could not be offered (such as the employee going on leave or being given alternative duties), it is likely the Fair Work Commission would side with the employee in unfair dismissal proceedings resulting from a failure to comply with a direction. The employer would need, among other things, to demonstrate why the employee's vaccine preference could not be accommodated prior to termination of employment.

For further information please contact:

Michael Byrnes, Partner
Phone: +61 2 9233 5544
Email: mjb@swaab.com.au

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.