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Can employers mandate COVID-19 Vaccinations for staff?

With lockdowns in New South Wales and Victoria likely to continue until October 2021 and State Premiers saying that easing of lockdown restrictions is tied to achieving various community vaccination rates, what does this mean for employers?

There are two issues front of mind for employers and HR managers:

  1. Can I direct staff to return to the office when the restrictions are lifted; and
  2. Can I mandate vaccination for staff returning to the office?

In this article, I’ll focus on the second issue.

Medical experts say that a fully vaccinated workforce increases the safety of all attending the workplace. Employers have a duty to provide a safe workplace for their staff and under workplace safety laws and in connection with workers compensation insurance obligations, there are penalties for failing to do so.

It should follow, that it’s lawful for an employer to mandate vaccinations, but it’s not that simple.

Workers Compensation

A recent case decided by the New South Wales Personal Injury Commission, illustrates the risk employers take when staff contract COVID in circumstances that give rise to a workers compensation claim.

On 10 August 2021, the Commission found in Sara v G & S Sara Pty Ltd [2021] NSWPIC 286 that the estate of a deceased employee/director who contracted COVID-19 during a work-related trip to the USA and died, was entitled to compensation for his death. It was determined that he contracted COVID-19 in the course of his employment.

Having regard to the dispute over the facts, it being a first instance decision of a single commissioner and the sums involved (the applicant was awarded a death benefit of $834,200, weekly payments for the months that he was ill and unable to work and medical expenses valued at $11 million), the case will almost certainly be appealed.

The result will cause concern for employers (and their insurers) and provide confidence to the almost 1,000+ COVID-19 related workers’ compensation claims lodged across Australia at May 2021.

Since the Federal Government COVID vaccine indemnity scheme was introduced on 6 September 2021, employer groups have been pressing legislators to ensure the Scheme is made available for the benefit of employers who mandate COVID vaccinations for staff, for fear of the prospect of escalating WC insurance premiums. This particularly the case in the tourism and hospitality sectors.

The scheme was introduced to provide protection for healthcare workers administering vaccines and is also intended to encourage the unvaccinated public to get “jabbed” by providing access to compensation if they have a serious adverse reaction.

Employers might rightly argue that mandating COVID vaccinations for staff will reduce the risk of employees contracting the virus at work and, accordingly, reduce the risk of a compensation claim. Maybe, but reducing the prospect of a workers compensation claim does not necessarily equate to providing workers with a safe workplace.

Options for Employers

Employers can direct their employees to return to the office to work and to be vaccinated if the direction is lawful and reasonable. Unless governments mandate vaccinations for all, whether a direction is lawful and reasonable will depend on the facts and needs to be assessed on a case-by-case basis.

For a direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies (for example, an anti-discrimination law).

In NSW, the State Government has issued public health orders requiring COVID-19 vaccination for workers specified in the NSW Airport and Quarantine Vaccination Program. The requirements apply to:

  • quarantine workers
  • transportation workers
  • airport workers.

The NSW Government has also introduced COVID-19 vaccination requirements for:

  • authorised workers leaving an area of concern for work (from 6 September 2021)
  • construction workers who live in an area of concern
  • certain early education and care facility workers and disability support workers who live or work in an area of concern (from 6 September 2021).

For a vaccination direction to be reasonable, it cannot be discriminatory or arbitrary. For example, mandating that a worker with a pre-existing medical condition who works in a clerical job, with limited interaction with customers and other staff, may be unreasonable.

On the other hand, an employer of bar staff or waiters in a hotel might reasonable direct staff returning to work to be vaccinated, to reduce the chance that worker, were they unknowingly infected, from passing on the virus to a customer or a co-worker.

What about the staff member who has been working from home effectively under the “stay-at-home” orders and is unvaccinated, but resists the direction to be vaccinated and resists the direction to return to work?

Leaving aside the question of the direction to be vaccinated, is it reasonable for the employer to mandate that the employee return to work in the office, in circumstances where they have demonstrated that they can effectively work from home and they may face an infection risk travelling to work, or at work?

Fair Work Australia

Fair Work Australia has published some helpful guidelines on the topic, which includes the concept of 4 “tiers” of work, as a guide to assessing whether a direction to an employee to get vaccinated is reasonable.

https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations

Summary

For the overwhelming majority of businesses, the mandating of workforce vaccinations is at the discretion of the employer.

Where vaccination is not considered an inherent requirement for the worker to perform their work, or the direction to vaccinate is not considered reasonable and lawful, businesses face the risk of court action for actual or constructive dismissal, or for breaching discrimination and/or human rights laws.

Employers must also satisfy their consultation obligations under occupational health and safety legislation and any applicable industrial instruments. It follows that vaccine policies of employers should not mandate the vaccine for all employees without exception.

 

© Peter English

Surry Partners Lawyers

Sept. 2021