Mandating Vaccinations in the Workplace: When can an Employer Require Employees to be Vaccinated?

With Australia’s vaccine roll-out well underway, and the highly transmissible Delta strain of COVID-19 causing lockdowns across almost every Australian state and territory, many employers are considering their options and obligations with respect to the implementation of mandatory vaccination policies.

There is no ‘one size fits all’ answer to the question of whether an employer can lawfully require its employees to be vaccinated. The extent to which an employer can impose a mandatory vaccination policy will be determined by reference to the touchstone of ‘reasonableness’. Of course, questions of ‘reasonableness’ are notoriously difficult to apply uniformly and sensibly across all employers in Australia.  However, given the high transmissibility of the Delta strain, and the substantial health consequences for some who are infected, for many employers there will be a legitimate legal basis to consider the introduction of a mandatory vaccination policy.

We have set out below some of the key questions that employers are asking, and the considerations that are relevant in determining the legality of implementing a mandatory vaccination policy in your workplace.

When can an employer require employees to become vaccinated against COVID-19?

Employers will be lawfully permitted to require employees to become vaccinated against COVID-19 when doing so constitutes a ‘lawful and reasonable direction’. Of course, employers can never forcefully require employees to be vaccinated without their consent. But we are of the view that in many circumstances, employers will be able to impose as a condition of employment, or as a condition of access to the workplace, that employees must be vaccinated against COVID-19.

In considering whether or not it is lawful and reasonable to implement a mandatory vaccination policy, there are a number of considerations that must be taken into account, including:

• The management prerogative of an employer to run its business as it sees fit, and to protect its legitimate interests.
• Whether mandatory vaccination is justified on health and safety grounds, including the availability of other control measures, and consultation with workers and health and safety representatives.
• The policy, laws and regulatory approach of the Federal Government and relevant state or territory governments.
• Any relevant information or guidance from statutory bodies, government agencies and regulators including:
  • the availability of vaccines under the national COVID-19 immunisation roll out;
  • data protection implications, including with respect to requirements for employees to provide information on their vaccination status, verifying its accuracy and retaining that data;
  • restrictions on communications regarding COVID-19 vaccines imposed by the TGA; and
  • that vaccination is not suitable for everyone. 
• Restraints imposed by the operation of an industrial instrument, such as an enterprise agreement or contract of employment.
• A mandatory vaccination programme might directly or indirectly discriminate against employees with certain protected characteristics or attributes under anti-discrimination legislation or otherwise, give rise to challenges under relevant human rights laws.  However, overall we are of the view that such circumstances would be very rare.

Each of these factors will depend heavily on the specific circumstances of the workplace and each employee.

At a high level, however, one of the key factors in assessing whether it will be reasonable to require employees to be vaccinated against COVID-19 are the health and safety risks in the workplace. The Federal Government has proposed a four-tier system of risk for workplaces, as summarised below:

It is important to note, however, that management’s prerogative to introduce a mandatory vaccination policy is not solely limited to first order considerations of health and safety. Other relevant considerations may include the employer’s desire to minimise the impacts of COVID-19 on the effective conduct of its business and to protect its:For employers in the first three tiers of workplaces, the health and safety risks associated with the transmission of COVID-19 in the workplace are much higher than in Tier 4. This may mean that vaccination as a precondition of work in some roles could be justified on health and safety grounds (and may also already be covered by state and territory public health orders). In other workplaces, the assessment is less clear and requires an analysis of the level of risk and the practicality of available control measures.

It is important to note, however, that management’s prerogative to introduce a mandatory vaccination policy is not solely limited to first order considerations of health and safety. Other relevant considerations may include the employer’s desire to minimise the impacts of COVID-19 on the effective conduct of its business and to protect its:

• reputation.
• desirability as an employer of choice.
• retention of staff.
• financial and economic interests.

Having regard to the above factors, on balance is likely that many employers within Australia could be in a position to issue a lawful and reasonable direction requiring employees to become vaccinated as a condition of employment.

As is set out in more detail below, any mandatory vaccination policy will need to comply with existing laws, including with respect to anti-discrimination.

How will anti-discrimination laws impact a mandatory vaccination policy?

The key risk from a discrimination perspective is the approach taken with respect to employees who have medical conditions for which obtaining any of the available COVID-19 vaccinations is contraindicated. It will be important to carefully navigate such cases in order to avoid contravening obligations imposed by disability discrimination legislation.

Employers will need to consider whether it would be possible to exempt such employees from any requirement to become vaccinated. Alternatively, it may become necessary to consider whether any of the exceptions under any applicable discrimination law are enlivened, such as where it can be established that becoming vaccinated forms an inherent requirement of the role, or where any other approach would impose an unjustifiable hardship on the employer.

Aside from disability discrimination legislation, employers will also need to be cognisant of obligations imposed by age discrimination legislation, as well as potential obligations with respect to religious discrimination or race discrimination in certain circumstances.

Can we offer incentives to staff to become vaccinated instead of implementing a mandatory policy?

Many employers are opting, at least initially, to incentivise staff to become vaccinated rather than implementing a mandatory vaccination policy. Employers who do so will need to consider any implications arising under discrimination legislation for employees who are unable to obtain a vaccine, for example, because of an existing medical condition.

Additionally, the Therapeutic Goods Administration (TGA) has provided permissions and guidance on when an entity, including an employer, can offer valuable consideration (which means any offer of value, whether it is goods, services or some other benefit) to people who have been fully vaccinated under the government’s national COVID-19 vaccination program. The following conditions have been imposed by the TGA on any such offer:

• The offer:
  • can only be made to people who have been fully vaccinated, which for the current approved COVID-19 vaccinations means two vaccinations. No prescription is provided by the TGA on the means by which full vaccination is to be verified, but this could be achieved by requiring an employee to provide a copy of their Immunisation History Statement available on the myGov website;
  • must contain a statement to the effect that the vaccination must be undertaken on the advice of a health practitioner;
  • must only refer to COVID-19 vaccines generically (that is, not by any trade name or another reference to a particular vaccine); and
  • must be made to all eligible people who have been vaccinated (that is, the offer cannot be made to only those people vaccinated from the date of the offer, it must apply retrospectively to those who commenced or completed their vaccination schedule prior to the offer being announced).
• Rewards must not include tobacco or medicines (other than listed medicines).
• Offers of alcohol must not encourage excessive or rapid consumption of alcohol, have strong or evident appeal to minors and must be served consistent with the Responsible Service of Alcohol arrangements.

Final thoughts

There are a number of considerations that must be weighed up by employers in considering their approach to implementing a vaccination policy, whether mandatory or otherwise. We recommend obtaining appropriate specialist advice in order to ensure that the various applicable regulatory and legislative regimes can be navigated.

For more information about this article, please contact our Workplace and Employment partner James Simpson.