Carrots & Sticks – Considering a COVID Vaccine Mandate in your Workplace

Last week we had our first candidate instruct us not to represent her to any firms who intend to mandate COVID vaccines. Welcome to the new world! But employers must tread carefully on this subject of mandating vaccines.

Last week we had our first candidate instruct us not to represent her to any firms who intend to mandate COVID vaccines. Welcome to the new world! A place where one’s vaccination status becomes a bargaining chip. Feels a bit like a Matt Damon movie.

I’ve been a bit interested in this mandating vaccine minefield since Alliance Airlines, based in regional Queensland, announced on May 31st that they would be requiring all their staff to be vaccinated against COVID. Wow, I thought – that’s a bold move. Firstly, because the availability of vaccines at that time was scattered at best and completely absent at worst, and secondly, there was no protection under the Fair Work Act for such a mandate. But there was barely a murmur about it.

A month later, on 28 June, the Australian Government announced that COVID-19 vaccinations would be made mandatory for all residential aged care workers with this month as the deadline for first doses. We all thought that was pretty reasonable. After all, they are in daily contact with some of our most vulnerable.

It wasn’t until SPC announced their ‘no jab, no job’ policy on August 4th, within a couple of hours of the Prime Minister, Scott Morrison announcing that the Australian Government would not indemnify any companies who mandated the COVID vaccine in their workplace, that the nation sat up and took notice. Now, here was a real game-changer. A company mandating the vaccine in a direct response to the PM saying no company would be indemnified. SPC makes a pretty good case and is confident its decision would be upheld if challenged.

Since then, Qantas has mandated vaccination for all its frontline staff by November and the rest by March 31 next year, including Jetstar employees. And we’ve consulted with numerous clients over the past weeks who wish to do the same but aren’t sure how to go about it.

And then we get to the individual states who have the right to make their own laws about these things. On August 27th the NSW Education Minister, Sarah Mitchell announced that the NSW Government is mandating vaccines for all teachers and they have until November 18 to comply or lose their jobs.

But while the Federal Government still hasn’t agreed to indemnify companies from challenges under the Fair Work Act, there have been some noticeable changes in the guidelines from the Fair Work Ombudsman that suggest companies may have some protection if they can prove their decision is based on ‘reasonable’ grounds.

Yep, the old ‘reasonable’ chestnut. That shuffling sound you can hear is hundreds of lawyers getting ready to spend years in courts across the nation defining and defending ‘reasonable’.

What does the Fair Work Ombudsman say?

The door has been opened slightly on the question of mandating vaccines and providing employers protection to do so. But perhaps not enough to give employers the confidence to boldly go ahead.

Essentially, the Fair Work Ombudsman provides a set of guidelines that could be seen as solid ground or fraught with danger, depending on what industry you’re in and how deep your pockets are for a good lawyer.

The Fair Work Ombudsman says:

• it is permissible to encourage staff to get vaccinated and provide information and paid time off to facilitate a vaccination because this is consistent with the Federal Government’s program to get everyone in the country vaccinated as soon as possible

• it is permissible to mandate vaccines if it is a direction of a lawful Public Health Order (e.g. the NSW Govt decision about teachers) or it complies with an employment contract, award or agreement, and any Commonwealth law that applies (e.g. anti-discrimination)

• a decision to mandate vaccines without a Public Health Order or any other lawful grounds, would need to be on a case-by-case basis and dependent on a range of other considerations that “may” be relevant, like:

• the nature of each workplace (for example, the extent to which employees need to work in public facing roles, whether social distancing is possible and whether the business is providing an essential service)

• the extent of community transmission of COVID-19 in the location where the direction is to be given

• the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant

• work health and safety obligations

• each employee’s circumstances, including their duties and the risks associated with their work

• whether employees have a legitimate reason for not being vaccinated

• vaccine availability.

Clear as mud, right? Lots of ‘dependent’, ‘reasonable, and ‘may be’ in that guidance!

So, let’s start drilling down a bit further.

What is a lawful Public Health Order?

In layman’s terms, it’s a directive from the Department of Health for a certain thing to become law in the interests of public health and safety. We’ve seen lots of these in the past months – stay at home, mandatory quarantine, business closures, breaching quarantine and so on. The Federal Government and individual states are able to make their own Public Health Orders. For example, mandatory quarantine for all travellers to Australia is a federal order, whereas having to quarantine when you cross a state border is mandated by the state into which you are travelling.

What about compliance with things like employment contracts or Awards?

At the time of writing, I am unaware of any Modern Award or lawful Employment Agreement in Australia that mandates a COVID vaccine.

And in the last couple of weeks, in a show of rare solidarity, the Business Council of Australia and the ACTU have publicly agreed that individual employers shouldn’t be able to unilaterally impose a mandatory vaccination policy.

So suggestions on how to deal with this include issuing new employment agreements to all staff with a COVID vaccination clause, requiring only newly hired staff to be vaccinated, or leaving staff to make their own choice but limiting certain work to vaccinated employees.

And compliance with Commonwealth Laws – Federal and State?

Laws which apply to workplaces in Australia include:

• Fair Work Act 2009
• National Employment Standards (NES)
• Work Health and Safety Act 2011
• Privacy Act 1988
• Age Discrimination Act 2004
• Disability Discrimination Act 1992
• Racial Discrimination Act 1975
• Sex Discrimination Act 1984
• Individual State anti-discrimination laws

A lot, right?

The Fair Work Act and the The National Employment Standards don’t currently provide for mandating vaccines, so there’s a minefield right there.

The various anti-discrimination and equal opportunity laws around the country make it illegal to discriminate against someone based on race, colour, social origin, age, gender, marital status, sexual orientation, religion, disability, family or carer’s responsibilities, pregnancy, political ideology, or belonging to a trade union, so how do these play into the debate?

For example, the Work, Health and Safety Act requires employers, by law, to take every precaution to keep their employees safe, or face serious consequences. So wouldn’t mandating a COVID vaccine, proven to be effective in preventing illness and death, be considered compliant under the law?

But then, the Privacy Act 1988 prevents employers from requiring employees to provide their health records, so requiring someone to provide evidence of a vaccination could be in breach of that. So how would you legally know that your employees are vaccinated?

And what about people who belong to a religion that doesn’t allow medical intervention of any kind? Are you then discriminating against them because you won’t employ them if they aren’t vaccinated?

And let’s not forget the problem that tens of thousands of people are still having with access to vaccines at the moment due to a lack of supply or a lack of trained people to administer them. Yes, thousands – it’s called regional Australia. Are we in breach of equal opportunity legislation by not employing them?

There may be genuine medical reasons why someone cannot get vaccinated. Should they lose their job?

You can see where I’m going with all that… direct to the lawyer’s office!

So, what are ‘reasonable’ grounds?

The FWO does provide some guidelines on what are reasonable grounds in the form of a 4-Tier approach to help employers make a decision that would be deemed ‘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, businesses 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).

But then the debate begins about who is in what Tier and what if you have some employees in one tier and some in another?

For example, a business that has a combination of customer-facing staff and admin staff may decide to mandate the vaccine for all customer-facing staff (because that would be deemed ‘reasonable’ but not those in office-based admin roles (because that may be deemed unreasonable by the FWO). But what does that mean for your work health and safety obligations? We know that fully vaccinated people can still transmit the virus. Do you have to keep the vaccinated people away from the unvaccinated people to comply with your obligations?

Another consideration in deciding whether a decision is ‘reasonable’ or not is the status of infections in the region in which the employer’s business is located. Good luck with that one! We have seen in no uncertain terms these past months how unpredictable the Delta strain of this virus is – one week your LGA is COVID-free and the next it’s in lockdown with hundreds of cases.

Can an employee refuse to comply with a company mandate to get vaccinated?

Technically, yes they can. However, if the employer’s reason for requiring the vaccine is considered reasonable, in that it complies with the FWO guidelines, is for genuine work health and safety reasons, and is not in breach of any anti-discrimination laws, employees will need to have a legitimate reason to refuse being vaccinated. If they cannot prove a legitimate reason, they may be subject to disciplinary action, which may result in termination of employment.

What protections are in place?

Apart from some legislative safety if you can prove your decision is a ‘reasonable’ one, there doesn’t seem to be much else to provide and meaningful protection for employers. It’s likely that laws will change once enough companies have challenged the ones in existence but that will take time and money, and not every business has either of those luxuries at the moment.

However, it seems that employees who do decide to get the jab are being provided some financial security should they lose hours or pay as a result of getting vaccinated. In a recent move, the Federal Government has announced a new initiative to provide security for employees who may lose pay as a result of not being able to work due to an adverse reaction to one of the TGA approved vaccines – Astra Zenca, Pfizer or Moderna.

From 6 September, the No Fault COVID-19 Indemnity Scheme will cover the cost of injury and loss of income above $5,000 for any employee who has a proven adverse reaction to a COVID-19 vaccine. The Government is trying to argue that this will dissuade

But you have to find the first $5,000 yourself and claims will be assessed by independent experts, so there’s probably a lot of people who don’t see that as much protection.

What do company bosses, trade union reps and the lawyers say about all this?

Industry Groups and the ACTU are in clear agreement on three things:

1. the Federal Government has failed to provide clear leadership and direction on this vexing question,

2. workplace vaccine mandates should be limited to specific workplaces and backed by public health orders, and

3. we can look forward to legal challenges in every jurisdiction in the country if employers are given free rein to mandate vaccines.

The legal chatter is pretty unanimous – ‘get legal advice’. Best summed up by Michael Byrnes, a partner at the respected Sydney law firm, Swaab who says that for most employers the key question of whether a mandatory vaccination is reasonable “will rarely lend itself to an easy yes or no response”.

What are effective alternatives to mandates?

While there are some who are going in hard, wanting to cover their bases and protect themselves, there are many, like Bunnings, BlueScope, Wesfarmers, CBA, NAB, who believe that encouraging and incentivising employees to voluntarily get vaccinated is a much more successful approach.

Their view is that by appealing to people’s sense of personal responsibility for their own health and that of their colleagues, the rate of voluntary vaccination will increase to a level that is acceptably safe for everyone.

This approach is supported by the research. In a recent study of over 3,000 Australians that looked at vaccine hesitancy, it was found that the most effective tool to encourage people to get the jab was positive public health messaging and in-group behaviour rather than a ‘big stick’ approach.

There will always be a group of people who will remain resistant and other measures would need to be taken to ensure the appropriate level of national coverage is achieved to ensure wide-spread community safety.

Think before you leap into mandating the vaccine in your workplace

The clear message that seems to be coming through from all quarters is to deeply consider any decision to push out a policy mandating a COVID vaccine in your workplace.

While it may well be taken out of our hands by the Government at some point in the future, the landscape right now is pretty blurred and open to numerous legal challenges.

Our advice is to first look at what initiatives you can put in place to drive up a voluntary uptake of vaccination. With the right approach – positive, encouraging, fun, rewarding – you may just be surprised by the result.

After all, carrots have always worked better than sticks when it comes to human behaviour. And they’re generally way cheaper than lawyers.