Australia: Q&A - Employer COVID-19 Vaccination Policies

*Disclaimer: Given the speed at which new laws, regulations and policies have been implemented to control the COVID-19 pandemic, it is possible that the responses below will be impacted.*

Can an employer compel compulsory vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?

Whether an employer can compel compulsory vaccination will depend on whether the direction to be vaccinated is a reasonable and lawful direction and whether the direction must be made to enable the employer to meet its work, health and safety requirements.

Whether the direction to be vaccinated is reasonable will depend on a number of factors, including, but not limited to:

• the level of risk that arises if the employee is not vaccinated;
• whether the vaccination is necessary for the employee to perform the inherent requirements of their position safely;
• the nature of work to be performed by the employee; and
• the types of premises they are required to attend.

Relevant also to the reasonableness will be any directions issued by the government regarding the vaccine, including the introduction of measures to encourage vaccination.

An additional consideration is that even if the direction could be considered reasonable, it may not be lawful as it could breach anti-discrimination laws, e.g., potentially disability or religious discrimination laws.

Depending on the nature of the industry in which the employer operates and the work performed there could be some employers who may be able to rely on some discrimination law exemptions due to the nature of their business – such as employers in the aged care, childcare or health sectors. One available exemption would be that discrimination was necessary to comply with work, health and safety obligations.

As at the time of this advice, a suggested approach is for an employer to request (rather than direct or compel) that employees be vaccinated. However, much will depend on what measures the Australian Government put in place – for example, if the Australian Government prohibits persons from attending large workplaces without being vaccinated, an employer could rely upon that as being a ground to issue a direction. Even then though, some exceptions may need to be made (i.e. medical conditions).

For completeness, we note that workers compensation liability could arise if the vaccine is given in connection with the employment and a person suffers an illness as a result or contracted COVID-19.

Can employees refuse to be vaccinated - how does this balance against the freedom of choice and the obligation to provide a safe work environment?

If an employer does issue a direction that is reasonable and lawful, it must be complied with by the employee – provided the employee can reasonably comply with it. If an employee cannot comply with the requirement because of a legitimate medical condition (for example), this may provide a basis not to comply.

If there is a legitimate medical reason why an employee cannot comply with the direction (eg, because they are already unwell, they have a relevant allergy, they are undergoing other medical treatment that makes it inadvisable to receive it, etc.), then insisting on vaccination is prima facie unlawful as it will be in breach of Australia's State and Federal anti-discrimination laws. The anti-discrimination laws do provide for some exemptions, and it will be necessary to see if an exemption applies. These exemptions must be considered on a case by case basis and there are arguments both ways. However, we can say a factor that would suggest an exemption may apply is if the discrimination is reasonably necessary to protect public health.

Furthermore, one of the problems in assessing reasonableness at this point is that the vaccine is developing and there are, not completely unfounded, concerns about the safety of any vaccine. Having said that, given the impact of COVID-19, how infectious the disease is and an employer's obligations to provide a safe workplace, it may become easier to establish reasonableness when a vaccine is declared safe and is supported by the Government. It would also appear that for employers in particular high occupational risk sectors such as healthcare and childcare, there is a particularly compelling basis to direct employees to be vaccinated to comply with their obligation to provide a safe workplace.

In the event of a refusal can an employee be dismissed for refusal to comply with such a vaccination policy - will that constitute just cause for termination?

If the employer has a reasonable and lawful basis to issue the direction and the employee refuses to comply, it may form a basis for termination (with the applicable notice period being given).

If a decision is made to terminate the employment, the usual termination risks in Australia will apply, including potential unfair dismissal claims for eligible employees, general protections claims and discrimination claims.

Any refusal should be assessed on a case by case basis and the discrimination risks outlined above will need to be considered including any applicable exemptions. Also, a fair process should be followed before any termination – including giving the employee opportunities to explain their refusal and proper consideration by the employer of those reasons and whether there are any alternatives to dismissal.

Further, if an employee does refuse vaccination because of medical reasons (i.e. a medical condition that means they cannot have the vaccine), this may become a fitness for work issue but where possible, the employer should consider whether the employee can work from home or look for alternative work for the employee to perform, which does not require the employee to be vaccinated.

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