Though a higher percentage of COVID vaccinations means easing restrictions, workplaces reopening and a hopeful return to economic stability, employers are now forced to grapple with a new range of tough questions and decisions: does an employee have to be vaccinated to enter the workplace? Can, or indeed should, an employer make it compulsory for their workforce to be vaccinated? What happens for those workers who are exempt from receiving the vaccine? What are some of the legal implications of requesting employees be vaccinated, and terminating them should they refuse? 

This is an unprecedented situation, and one that is likely to evolve over time. But with the Federal and State Governments hesitant to provide strong guidance on how to navigate this issue outside of health directives, the answer, therefore, involves consideration of ‘first principles’ in relation to the employment relationship. 

Lawful & Reasonable Directions 

Employment contracts contain an implied term that employees are obligated to follow any lawful and reasonable direction. Therefore, if an employer’s direction that an employee should receive a COVID-19 vaccination, is considered a ‘lawful and reasonable’ direction, an employee may be obliged to receive one as a condition of their employment. 

Is the direction ‘lawful’?  

For a direction to be ‘lawful, it does not have to be consistent with existing laws, it just must not be contrary to any laws. As there are currently no laws that make mandatory vaccination a condition of employment unlawful, the direction would be considered a lawful direction. 

Is the direction ‘reasonable’?  

However, whether an employer directing an employee to receive a COVID-19 vaccine is considered ‘reasonable’ is more complicated. 

The Fair Work Ombudsman (FWO) has  provided guidance on factors that employers should consider when determining whether a direction to receive a COVID-19 vaccination is ‘reasonable’. It has divided work into 4 tiers, noting that a workplace may include a variety of tiers: 

• Tier 1: consisting of employees who are required to interact with people who have an increased risk of being infected with COVID-19 as a part of their role, such as quarantine or border control workers. 
• Tier 2: consisting of employees required to have close contact with people who are vulnerable to the impacts of COVID-19, such as employees who work in healthcare or aged care. 
• Tier 3: consisting of employees who interact with others in the normal course of their employment. 
• Tier 4: consisting of employees who have minimal face-to-face interaction with others, such as those who work from home. 

The FWO has suggested that a direction to receive the COVID-19 vaccine will be considered reasonable for tier 1 and tier 2 employees due to the increased risk of these employees being infected with COVID-19 or giving it to a vulnerable person. 

Whether it will be reasonable for Tier 3 employees is not as clear. What is reasonable will depend on a range of factors and the circumstances of the case, including, but not limited to, the nature of the role and industry, the spread of COVID-19 in the community at the particular time, any legitimate reasons why an employee is not able to get vaccinated or get the booster shot, and whether there are alternatives to vaccination (such as rapid antigen testing). 

The FWO suggested that directing a Ter 4 employee to receive the COVID-19 vaccination will not be reasonable. 

Work Health and Safety Obligations 

Employers have a duty under the model Work Health and Safety (WHS) laws to eliminate, or if that is not reasonably practicable, minimise the risks of COVID-19 in the workplace ‘so far as is reasonably practicable’. However, employers do not need to mitigate all risks to the health and safety of their employees, they are only required to take those measures that are ‘reasonably practicable’. 

SafeWork Australia has stated that it believes that most employers will not need to mandate COVID-19 vaccinations in order to comply with their WHS obligations, as this is unlikely to be ‘reasonably practicable’. This conclusion was made due to the fact that the government is already mandating COVID-19 vaccinations for industries where it is considered necessary, while some employees will not be able to receive a vaccination due to medical reasons. 

Can an employer seek information from employees about their vaccine status? 

When it is lawful and reasonable to mandate a vaccination (for example, your employees are classified as Tier 1 and/or Tier 2), the request for evidence that this direction has been complied with would also be considered lawful and reasonable. 

The collection of health information, which includes vaccination information, is governed by the Privacy Act. As a matter of best practice, employers should only seek information necessary to ascertain if staff are vaccinated or not. This could be done by simply sighting COVID-19 vaccination certificates rather than storing them. 

The FWO has a similar advice on its website: an employer may ask to view evidence of vaccination status without raising privacy issues, as long as employers do not ‘collect’ the information (i.e. make a record or keep a copy). An employer should not collect information relating to the vaccination status of an employee unless the employee consents and the collecting of this information is necessary for the employer’s function and activities. 

Consent to the collection of an employee's vaccination status is not required if the collection of this information is needed, or authorised by law, e.g. a health directive. 

Where it is lawful and reasonable for an employer to mandate full vaccination against COVID-19, then an employee’s failure to comply with this lawful and reasonable direction can result in disciplinary action, including dismissal. 

If you require assistance in understanding your obligations when it comes to vaccine mandates, or would like to understand the legal implications of mandating vaccines in your workplace, contact Acclaimed Workforce today.