The Victorian Government’s road map to re-opening has made it clear that vaccine passports are an integral part of the Government’s plan to re-open the economy.
Certain sectors including the construction, education, childcare, aged care and healthcare sectors already have, or will soon be required to have, mandatory vaccination for some or all of their employees, and other sectors including hospitality, events and retail are likely to follow as the economy re-opens.
In addition, a number of employers are requiring their employees to be vaccinated on their own initiative.
It is worth stating at the outset that measures across a broad range of the economy that restrict the daily activities of the unvaccinated are (to use a much overusedword) unprecedented, at least in living memory, and whilst the roadmap shows a path forward to re-opening it is also raising many questions for small and medium businesses.
This is particularly so for businesses that have employees reluctant to be vaccinated for one reason or another. For some employees, vaccination may be a deeply personal matter, and if the employee is sceptical of the vaccines, providing them with the choice between vaccination and employment places them in a difficult situation. Employers therefore need to be sensitive when considering and implementing vaccine mandates, whether as a government requirement or whether on their own initiative.
We can categorise workplace vaccine mandates into three categories:
1. Victorian Government mandated vaccination as a condition of onsite work, such as is currently in place for the construction and aged cared sectors.
These restrictions are likely to be short to medium term restrictions, and they are likely to lift once a large proportion of the population is vaccinated, though it is unclear at what level of vaccination that will occur.
Further, the directions are made under the Public Health and Wellbeing Act 2008 (Vic) and could only operate whilst the State is in a state of emergency.
2. Vaccination is likely to be mandatory for travel. Therefore, employers who require employees to undertake travel (whether domestic or international) as part of their job may need to require employees to be vaccinated as an inherent requirement of their job, because the employees could not otherwise obtain travel visas.
3. Thirdly, we are likely to see more employers implementing mandatory workplace vaccinations on their own initiative.
The three categories are not mutually exclusive. For example, if the government only allows employees to return to the workplace if they are vaccinated, and the employer wants all employees to return to the workplace, then an employer may need to consider whether to make vaccination mandatory or whether to accommodate an unvaccinated employee by allowing them to continue to work from home.
To provide employers with some guidance, we set out legal considerations for navigating vaccine mandates with respect to:
- Existing employees; and
- Customers, contractors and potential employees.
Where there is a Government health directive
If the Government has provided a legally binding health directive requiring employees to be vaccinated as a condition of onsite work, the obligation will be on the employer to take reasonable steps to ascertain (with supporting evidence) that the employee is vaccinated (or partially vaccinated) as a condition of allowing them onsite. The employer will need to retain the supporting evidence.
If an employee is not vaccinated, or does not provide evidence of vaccination, then the employer will not be permitted to allow them onsite. If the employee cannot be convinced to be vaccinated (e.g. by asking them to speak to their GP), and the employee cannot carry out offsite work, the employer will need to cease providing that employee with shifts. If the vaccine mandate is likely to be short to medium term, the employee may be able to take paid or unpaid leave. If the mandate is likely to operate in the medium to longer term, employers may need to consider dismissing employees who cannot comply with the mandate.
Where there is no Government health directive
Where there is no Government health directive mandating vaccination, whether an employer can require an existing employee to be vaccinated is a question of whether such a direction would be a ‘lawful and reasonable direction’ for an employer to issue as part of the employment relationship.
There is limited judicial guidance on what this means at this point in time, particularly outside the aged and health care sectors, and therefore businesses will need to act in a cautious and considered manner. It is inevitable that decisions in this area will be challenged by employees and be the subject of future determinations by the Fair Work Commission or the courts.
The Fair Work Ombudsman provides a helpful guide for navigating this area.
Basically, the Fair Work Ombudsman’s guidance provides for four tiers of work with different risk profiles. Vaccine mandates are likely to be reasonable for tier 1 and 2 employees, they are unlikely to be reasonable for tier 4 employees, and for tier 3 employees it will be highly dependent on the circumstances.
- Tier 1 - employees who are at increased risk of being infected with COVID-19 (e.g. border control or hotel quarantine employees);
- Tier 2 – employees that are required to have close contact with people who are particularly vulnerable to the health impacts of COVID-19 (such as health care or aged care workers);
- Tier 3 – employees who have interactions with employees and other people or the public as part of their ordinary course of employment (such as retail stores providing essential goods and services); and
- Tier 4 – employees that have minimal face to face contact with others.
These categories are not the law - they simply provide guidance and may change as circumstances change. For instance, we would expect that, as restrictions ease, a greater level of nuance between types of tier three employees will be required. For example, there may be a greater need for school teachers or employees working in food and hospitality to be vaccinated than for an accountant who has the occasional client meeting to be vaccinated.
When considering whether or not to make vaccines mandatory in a workplace, we suggest that the following are questions that should be considered:
- Does having unvaccinated employees significantly increase the risk of the business’s employees, customers, stakeholders or members of the community contracting COVID-19 and facing potentially serious health consequences?;
- Does having unvaccinated employees make it unreasonably difficult for the business to operate given government restrictions in place for unvaccinated persons?;
- Does having unvaccinated employees significantly increase the risk of an outbreak at the workplace which could result in the workplace being closed as an exposure site or the business being significantly impaired as a result of employees being required to isolate?
If the anwer to any of the above is yes:
- Can those hesitant to be vaccinated be persuaded to be vaccinated (for example, by encouraging them to speak to their general practitioner)?
- If not, do the risks associated with employing an unvaccinated person justify dismissing an employee from employment?
It also seems likely that the calculus could change overtime. For instance, it may present a high risk to the community for a health worker not to be vaccinated whilst not everyone in the community has had the opportunity to be vaccinated. On the other hand, once most of the population is vaccinated, it is possible that the risks of an unvaccinated person being in contact with vaccinated people is much lower (which, after all, is why society tolerates a small number of unvaccinated people for most infectious diseases).
A business that is considering making vaccination mandatory should consult with their employees first, before introducing any changes. Most Awards and Enterprise Agreement will require an employer to provide their employees or their representatives with notices of the proposed changes in writing and to then consult, and the Occupational Health and Safety Act 2004 (Vic) has similar consultation obligations with respect to changes introduced to mitigate occupational health and safety risks. If any employees do have concerns, employers should carefully consider the employee’s concerns, and provide such support as they can. They should ensure that the employees have the opportunity to obtain their own medical advice before making any final decision with respect to that employee.
If an employee’s concerns are based on their own medical situation, care needs to be taken to ensure that the employee’s privacy is protected.
If an employer unreasonably introduces a vaccine mandate, which results in an employee being dismissed or otherwise unable to work, then an employee may:
- Pursue an unfair dismissal claim against the employer in the Fair Work Commission; or
- Depending on the employee’s employment contract, they may be able to claim compensation for breach of contract. This would most likely apply to employees on fixed term contracts.
Following a proper procedure and carefully considering all of the relevant factors before making a decision about mandating vaccination is therefore critical.
In addition to unfair dismissal and breach of contract claims, there is a possibility that an employee may be able to pursue a discrimination claim.
Discrimination legislation and the general protections provisions of the Fair Work Act 2009 (Cth) protect a person from being discriminated against on the basis of certain attributes that a person may have. However, having a personal opposition to the vaccine, in and of itself, will not be protected. Attributes that could be relevant include:
- A person’s disability or physical features – if a person has a genuine issue with their health that makes it in advisable for them to be vaccinated, it may be unlawful for a business to mandate that they be vaccinated. The health concern would need to be based on professional medical advice; a mere opinion would not be sufficient.
- A person’s religious views – it is possible that some people may be opposed to vaccination, or a particular vaccine, on religious grounds. However, it would not be sufficient for a person to have a personal religious or spiritual view on vaccination – they would need to identify a specific religious teaching by a religious body or group that prevented them from being vaccinated.
- A person’s political views –if a person expresses personal disapproval of a vaccine mandate, the expression of disapproval (rather than the refusal to be vaccinated) is likely to be protected as a form of political opinion. Employers will need to be careful about seeking to restrict what an employee says in relation to the vaccines.
Our view is that it will be difficult for individuals to successfully challenge vaccine mandates on the grounds of unlawful discrimination, but there is nonetheless some risk and businesses need to be attentive to individual situations. If a business is concerned that having a vaccine mandate could be unlawful discrimination, it would be advisable to seek legal advice on the specifics on the situation.
Customers, contractors and potential employees
In comparison to existing employees, customers, contractors and potential employees have significantly less grounds for disputing a vaccine mandate.
Customers, contractors and potential employees are protected from unlawful discrimination as discussed above. Risks of discrimination claims can be mitigated in the case of potential employees or contractors by discussing any concerns that they may have with them. It is more difficult for customers, because a generally applicable policy may be discriminatory without the customer having the opportunity to discuss their specific situation.
Contractors may also have contractual rights. If a business wishes to make vaccination compulsory for a contractor, care will need to be taken to ensure that this is allowed under the contractor’s contract. Unlike employees, contractors are not protected from unfair dismissal, but nor are they necessarily required to follow directions of the business. Businesses will need to ensure that any vaccine mandates fall within the scope of the contract.
For most small and medium businesses, the hope will be that all, or at least almost all, employees will receive their vaccination without issue. However, businesses that have employees who are reluctant or unwilling to be vaccinated for various reasons will need to carefully consider how best to respond. We are in unprecedented territory – move cautiously and seek appropriate advice.
How can Sharrock Pitman Legal help?
The Victorian Government’s road map to re-opening has made it clear that vaccine passports are an integral part of the Government’s plan to re-open the economy, thus raising many questions for small and medium businesses.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
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Samuel is a Senior Associate at Sharrock Pitman Legal.
He deals with areas of Commercial Law, Employment Law and Charities & Not-for-Profit Law. For further information, contact Samuel on his direct line (03) 8561 3316.