No Jab, No Job? Balancing The Complexity Of Individual Rights Vs Collective Needs

With the current resurgence of COVID-19 facing Australia, there are a lot of opinions and advice circulating about the ways employers can keep their businesses operating safely. One big question is – can employers make it mandatory for their employees to receive the COVID-19 vaccine in order to work there?  This is a highly emotive, difficult question to navigate, involving both individual rights and preferences and collective need to continue to work in a manner that is safe, productive and sustainable. There are no easy answers, however recent developments shed more light on the degree to which employers who need to can take this precaution.

When considering the risks associated with Covid, there are circumstances that may arise where it will be a lawful and reasonable direction of the employer, especially where there are no other measures that could be taken to adequately minimise the risk. This will depend on a number of factors, including:

• Consideration of risk assessment, such as the duties of the employee and the nature of the business undertaking of the employer;
• The interaction that an employee has with other employees or outface to members of the public in the course of their role;
• Whether practicable measures can be put in place in the workplace, or duties performed outside of the workplace, to minimise the risk of a person contracting COVID other than having a vaccine, such as wearing masks or regular testing or working from home.

For example, in the Fair Work Commission case of Glover v Ozcare (2021), the Commission held that it was a reasonable direction for the employer, an aged care facility, to direct an employee to receive the influenza vaccine as the inherent requirements of her job were such where she was exposed to the public and had interaction with other employees. Additionally, the employee had a heightened risk of transmission to what could be a deadly disease to people with existing co-morbidities. 

This relates to the primary duty of care of employers under section 19 of the Work Health and Safety Act (2011) to do all that is reasonably practicable to minimise risks to the health and safety of workers. The Fair Work Ombudsman has recently released additional guidance to help employers, by dividing the workforce into 4 broad tiers:

Tier 1: where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus.

Tier 2: where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus.

Tier 3: 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.

Tier 4: where employees have minimal face-to-face interaction as part of their normal employment duties.

An employer’s direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected, or giving coronavirus to a person who is particularly vulnerable. On the other hand, an employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of the coronavirus.

Another interesting aspect is the impact that mandatory vaccination may have on anti-discrimination provisions. Any blanket policy in a workplace would have to be adapted in order to comply with relevant anti-discrimination laws, where the mandate interferes with a “protected attribute” such as religion. A case of this kind has not been decided in Australia as yet, however, it is likely that the test of reasonableness will come into play where the scenario arises. Where an employee is provided with alternative accommodations such as transfer to a safer role or wearing a mask while at work, which are denied by the employee, it may be found by a court that it is lawful and reasonable to take the position that the employment relationship cannot continue in the absence of a vaccination.

The biggest take away we would like to share is to seek specific advice in relation to your business and situation if you are unsure, as always each situation has to be determined on a case by case basis. At A-HA, we have our finger on the pulse of the evolving guidance for business and can help you to navigate your legal obligations. Also, each State’s statutory regulator, e.g. Safework NSW, has an obligation under work health and safety legislation to provide advice and information on work health and safety to businesses and the community. The details of your state’s safety regulator can be found here: https://www.whssystems.com.au/whs-regulators/

So, in relation to the big question of whether an employer can make it mandatory for their employees to receive the COVID-19 vaccine in order to perform their role, we believe the current tide is moving towards support for mandatory vaccination where the relevant legal thresholds have been met.  

We know it can be nerve-wracking to put new measures in place when the guidance is constantly changing, plus it’s an emotive topic that will stir up lots of debate and reactions making it hard to know what is the ‘right’ thing to do; but our advice to our clients is that you can take steps to keep your business operating sustainably through complex uncertainty.

If you need some help interpreting the rules and how they apply to you, reach out to the A-HA team.

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The team at A Human Agency would like to acknowledge and pay respects to the traditional custodians of the land where our office is based, the Cammeraygal and Wallumedegal peoples of the Eora nation. We pay our respects to Elders past and present, and celebrate the diversity of Aboriginal people and their ongoing cultures and connections to the lands and waters of NSW.