What has changed with mandatory vaccination?
As workers adapt to the unpredictable climate of the pandemic, NSW mandatory COVID-19 vaccine laws are also changing. COVID-19 vaccinations remain voluntary in Australia, 1 however there are laws mandating vaccination for specific workers. As of late April and mid-May 2022, mandatory COVID-19 vaccine laws have been lifted for certain categories of workers in NSW. For these workplaces (including construction, education, airport, quarantine and transport) vaccine mandates are to be managed through work, health and safety obligations. However, orders for some workers have remained in place including health care workers, aged care and disability services workers. Health care workers are still required to be fully vaccinated (2 doses of COVID-19 vaccine). Aged care and disability services workers are required to have 3 doses of the COVID-19 vaccine. 2
Notably, the mandate for education and care workers to be fully vaccinated was lifted on 13 May 2022 with NSW Premier, Dominic Perrottet encouraging unvaccinated teachers to return to work after the order was lifted.
For many workers, their workplace will determine vaccination policy
For those workers not required by government to be vaccinated, it remains at the discretion of their employers to mandate vaccination for employees in accordance with their duty of care under workplace health and safety laws in order to maintain a safe workplace. 3 Employers are still under the obligation to take all reasonably practicable steps to minimise the risk of exposure to COVID-19 in the workplace. This will usually involve formulating risk assessments and implementing control measures accordingly. Such assessments and measures will be dependent upon the level of customer interaction employees engage in, the level of density and ventilation in the workplace environment, or whether the business deals with vulnerable communities (such as the elderly, children or immunocompromised). Hence, depending on these considerations, mandating vaccines for employees may remain a reasonable and appropriate control measure.
As stated by Michael Tooma, Managing Partner at Clyde & Co law firm, vaccinations are a form of passive control which are preferential to control measures that rely on individuals abiding by procedures such as social distancing and hygiene management. Hence, in high-risk workplaces although there may be no specific public health order mandating vaccines for certain workers, it may be favourable for employees to do so. The fair work ombudsman maintains that 'employers may still be able to give their employee a lawful and reasonable direction to get vaccination', however this is a decision that will depend on 'the facts of the individual situation and needs to be assessed on a case-by-case basis.' 4
Some companies which have implemented mandatory vaccine requirements include Aldi, Coles, Commonwealth Bank, Qantas, SPC, Telstra, Virgin Australia, Westpac and Woolworths.
Footnotes
1Australian Government Department of Health, Is it true? Are COVID-19 vaccines mandatory in Australia? ( Web Page, 10 February 2022)
2 Public Health (COVID-19 Vaccination of Health Care Workers) Order 2022 (NSW); Public Health (COVID-19 Care Services) Order 2022 (NSW); New South Wales Government, Vaccination requirements for workers ( Web Page, 20 May 2022)
3 New South Wales Government, Keeping workers safe ( Web Page, 24 May 2022)
4 Fair Work Ombudsman, COVID-19 vaccinations: workplace rights and obligations ( Web Page, 20 April 2022)
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