Published 9 September 2021
It has been almost two years since the initial COVID-19 outbreak occurred, and after months of intermittent lockdowns and restrictions in an attempt to slow or reduce its spread, both the Australian State and Federal Government have stated that the administration of COVID-19 vaccinations are the key to lifting these lockdowns and ‘living with’ COVID-19.
While COVID-19 vaccinations have been mandated under Public Health Orders for some industries and local government areas, both State and Federal Governments have expressed an overall reluctance to mandate COVID-19 vaccinations in the workplace. However, the vast majority of employers that fall outside the scope of these public health orders are now seeking guidance on what to do to further reduce the impacts of COVID-19 on their business, and in particular, whether it is open for them to mandate that their employees receive COVID-19 vaccinations without legal consequences.
This situation is unprecedented in modern times, and the authorities with legislative or executive power are not providing private sector employers with strong guidance on how to navigate this issue. The answer, therefore, involves consideration of ‘first principles’ in relation to the employment relationship, including both the contractual obligations of the parties, and the statutory protections that underpin employment in Australia.
Lawful & Reasonable Directions
Employment contracts contain an implied term that employees are obligated to follow any lawful and reasonable direction that they are given by their employer. 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 (subject to the further considerations below relating to discrimination).
Is the direction ‘reasonable’?
Whether the direction to receive a COVID-19 vaccine will be considered ‘reasonable’ is a more complicated question that involves consideration of the nature of, and circumstances surrounding, the employment.
The Fair Work Ombudsman (FWO) has updated its website to provide guidance on factors to be considered when determining whether a direction to receive a COVID-19 vaccination is ‘reasonable’, including:
- The nature of the workplace, such as whether there is a need to interact with the public and what other controls are in place.
- The extent of community transmissions near the workplace, and the risk of transmission amongst employees and others.
- The effectiveness of COVID-19 vaccinations at reducing the risk of transmission or serious illness.
- Any existing work, health, and safety obligations (which we will discuss in more detail below).
- The individual circumstances of each employee.
- Whether an employee has a legitimate reason for not being vaccinated, this may include a medical reason.
- Vaccine availability.
As further guidance, FWO 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 health care 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 it is more likely 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 is not as clear. Where there is no or limited community transmission of COVID-19, the direction to receive the COVID-19 vaccination is less likely to be considered reasonable, than if there were high levels of community transmission. The FWO has also suggested that directing a tier 4 employee to receive the COVID-19 vaccination will not be reasonable.
There is not yet any case law available to assist employers in determining what the Fair Work Commission (FWC), or a court, will consider reasonable, in relation to the COVID-19 vaccine. However, the recent case Glover v Ozcare  FWC 2989 (Glover v Ozcare), while not binding, may provide useful guidance.
Glover v Ozcare
Glover v Ozcare involved a health care assistant who made an unfair dismissal claim against her former employer, Ozcare, who dismissed her after she refused to have the influenza vaccination. The Fair Work Commission dismissed her claim and held that Ozcare’s direction, that she must receive the flu vaccination, was a lawful and reasonable direction. When considering whether the direction was reasonable, the FWC noted that vulnerable clients should be able to expect that the carers entering their homes were taking every precaution against influenza and that wearing personal protective equipment is insufficient to do this.
Therefore, the greater the rate of community transmission, the more likely it is that the direction to receive the COVID-19 vaccination will be considered a reasonable direction. The Federal and NSW Government are emphasising the need to move forward and ‘live with’ COVID-19 and are no longer committed to the strategy of reducing community transmissions to zero. Therefore, it is likely that the rate of community transmission will continue to increase, and as it does, it will be more reasonable for an employer to mandate COVID-19 vaccinations.
Work Health and Safety Legislative Obligations
Section 19 of the Work Health and Safety Act 2011
Employers have an obligation under section 19 of the Work Health and Safety Act 2011 (Cth) (the WHS Act) to ensure the health and safety of its workers ‘so far as is reasonably practicable’. Therefore, it is arguable that ensuring that their workforce is vaccinated against COVID-19 is a necessary step towards ensuring the health and safety of their employees and compliance with their legal obligations under the WHS Act. 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 recommended that employers undertake a risk assessment to determine what measures, including mandatory COVID-19 vaccinations, will be considered ‘reasonably practicable’. SafeWork Australia has gone further and 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, and also because not all employees currently have access to a COVID-19 vaccine, while some employees will not be able to receive a vaccination due to medical reasons.
However, employers should conduct their own assessment, with consideration of the following:
- What is being recommended by the Australian Health Protection Principal Committee for your industry?
- Are employees exposed to the risk of infection as a part of their work?
- Do employees work with others who are vulnerable to severe disease if they contract COVID-19?
- What is the likelihood that COVID-19 would spread in the workplace? For example, are employees working within close proximity to each other?
- Do employees interact with a large number of people as a part of their work?
- What other control measures are available and in place at the workplace and do these already minimize the risk to a reasonably practicable level?
- Would the requirement be unlawful? Does it discriminate against a class of employees?
Section 84 of the Work Health and Safety Act 2011
Under section 84 of the WHS Act, a worker can cease or refuse to carry out work if there is a serious risk to health and safety due to an immediate hazard. Therefore, it is necessary to consider whether an unvaccinated employee is considered an immediate hazard causing a serious risk to health and safety, therefore allowing other employees to refuse or cease work.
SafeWork Australia said that in most cases an employee will not be able to rely on section 84 to cease work because another employee is unvaccinated, however this will vary depending on the circumstances.
Employers should also be aware of any consultation obligations placed on them under the WHS Act 2011, or any other applicable modern award, agreement, employment contract or existing workplace policy and ensure that they comply with those obligations before implementing a vaccination policy.
Can vaccines be incentivised?
In the event that an employer is unable to mandate that their employees receive the COVID-19 vaccination, many are asking “can I offer employees an incentive to encourage them instead?”.
It appears that, as long as an employer is not taking away rights or benefits from employees who do not receive the vaccination, they may be able to provide incentives to employees who do. SafeWork Australia has said that employers can encourage their workers to get a COVID-19 vaccination, if they are able to.
Can an employer seek information from employees about their vaccine status?
If an employer is able to mandate vaccinations, then this poses the question of how an employer is able to guarantee that its employees have received the COVID-19 vaccination.
Again, this will come down to whether the direction to receive medical evidence of a COVID-19 vaccination is considered lawful and reasonable. In circumstances where it is lawful and reasonable to mandate a vaccination, it appears likely that an employer’s request for evidence that this direction has actually been complied with would also be considered lawful and reasonable.
The Fair Work Ombudsman has advised on its website that an employer may ask for evidence of an employee without raising privacy issues as long as they do not ‘collect’ the information. The FWO then adds that 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. The FWO goes further and then states that consent to the collection of this information is not required if the collection is required or authorised by law, such as, when it is required for an employer to meet their work health and safety obligations.
Legal liability of an employer if vaccines are mandated
Conversely, it is important for employers to consider the risks of mandating the COVID-19 vaccine. Employers have raised concerns about whether they will be liable if an employee receives the COVID-19 vaccination due to mandatory policy and then they suffer injury.
COVID-19 vaccine claims scheme
The Federal Government has implemented the ‘COVID-19 vaccine claims scheme’ which aims to reimburse people who suffer a moderate to significant impact following an adverse reaction to an approved COVID-19 vaccine. This scheme will cover claims from $5,000 to $20,000, regardless of where the claimant received the vaccination. However, to be eligible, the claimant must provide evidence that they were hospitalised for at least one night due to a vaccine related injury, as well as demonstrate the nature of injury, the associated medical costs, and lost wages. The vaccination scheme will provide an avenue for employees to gain compensation for adverse reactions to the COVID-19 vaccination, and reduce the liability of employers.
Workers Compensation claim
iCare states that where an employer has encouraged or required a worker to get the COVID-19 vaccination, and the worker has an adverse reaction to the vaccination, this may be covered by workers compensation. The worker would need to prove that the injury arose out of, or in the course of their employment and that each claim is assessed on a case-by-case basis. iCare also provided that the following factors may increase the likelihood that a claim is covered by workers compensation:
- whether the employer took steps to arrange for its employees to receive a COVID-19 vaccination;
- whether the employer encouraged or induced employees to get vaccinated in order to obtain benefits for its business;
- whether the employer permitted or directed employees to have a COVID-19 vaccination during ordinary working hours; or
- whether the employer provided instructions to employees relating to the administration of the vaccination.
Therefore, it is possible that by mandating the COVID-19 vaccination, employers will be liable for any adverse reactions incurred. Since iCare is only applicable to New South Wales, employers should review the advice applicable to their state.
Employers should also consider whether a mandatory COVID-19 vaccination policy would create a risk for unlawful discrimination.
Federal discrimination laws provide that it is unlawful to discriminate on the grounds of pregnancy and disability in employment. As the definition of ‘disability’ is very broad, this could include a medical condition that prevents a person from receiving the COVID-19 vaccination. Under section 15 of the Disability Discrimination Act 1992 (Cth) (the DD Act) it is unlawful for an employer to discriminate against a person on the ground of their disability and this may extend to employers who take action against an employee who does not receive the COVID-19 vaccination or receive blanket rules mandating vaccination. This law is largely replicated specifically for employees by section 351 of the Fair Work Act 2009 (Cth).
However, it is not unlawful for an employer to discriminate against another person if that person would be unable to perform the inherent requirements of their work, even with reasonable adjustments being made by the employer. Further, it is not unlawful for an employer to discriminate against another due to their disability, if the adjustments required to enable the person to perform the inherent requirements of the role would impose unjustifiable hardship on the employer.
Employers will need to determine each matter on a case-by-case basis and understand the reasons that an employee cannot receive the vaccination, in order to identify whether there are any reasonable adjustments that can be made to an employee’s role, that do not involve mandating the COVID-19 vaccination. In some cases, it may be open for an employer to contend that it was an inherent requirement of an employee’s role that they work with vulnerable clients, or members of the community, and they must therefore be protected from COVID-19 by vaccination, as there were no other reasonable adjustments that could have been made.
It is only unlawful to discriminate against an unvaccinated employee if their reason for not receiving the vaccination is due to a protected reason, such as a medical condition, pregnancy or religious belief. The Fair Work Act also protects employees against discrimination on the grounds of political beliefs. However, a mere ‘conscientious objection’ on philosophical grounds to vaccination is currently not a protected attribute under Australian Law.
As discussed above, however, employers should consider the individual circumstances of each employee when determining whether a direction is reasonable.
A businesses obligation to their clients / customers
Businesses also owe a common law duty of care to their customers and clients under the tort of negligence. This duty requires that businesses take reasonable care to avoid acts or omissions which they can reasonably foresee would be likely to injure customers or clients. If a business has breached this duty of care, and this breach caused a customer or client to suffer material damage, then the business may be liable to pay the client or customer damages for the harm suffered.
As COVID-19 and its legal implications are relatively recent, and to date COVID-19 has been regarded as unprecedented and ‘unforeseeable’, there has been little discussion in relation to potential suits relating to businesses that negligently allow customers or clients to contract COVID-19 at their place of business. However, as we begin to accept the risks of COVID-19 into our everyday lives, it is conceivable that the failure to implement proper safety protocols in a public business (potentially including a policy around vaccination) could over time become considered an omission which could reasonably be foreseen to injure customers or clients.
Risk of not mandating COVID-19 vaccinations
There are a number of risks that businesses may face if they do not mandate COVID-19 vaccinations, this will vary from business to business, depending on the work that they do and the industry. Some potential risks, relating to the increased rate of transmission among the unvaccinated, may include:
- Increased rates of COVID-19 transmission in the workplace resulting in increased personal leave.
- Workplaces being required to shut down if a COVID-19 outbreak occurs on site.
- Additional costs incurred by implementing additional controls to mitigate the risk of COVID-19, in the absence of a vaccinated workforce.
What if an employee refuses to receive the COVID-19 vaccination?
As we discussed above, an employee can be subject to disciplinary action if they refuse to follow a lawful and reasonable direction, which in some circumstances, may include a direction that they receive the COVID-19 vaccination.
First, an employer should obtain the employee’s reasons for not receiving the vaccination and identify if any of these reasons are protected, as this may mean that the employee should not be subject to disciplinary action at all. If an employee’s reason for not receiving the COVID-19 vaccination is not for protected reasons, it is important that employers ensure that they follow a fair process and comply with their obligations under the FW Act in regard to adverse action and dismissal.
Whether an employer can mandate COVID-19 vaccinations is not a straightforward question. There is no blanket rule, as each case will be determined by reference to the individual circumstances of each business and its workforce.
If you require any assistance implementing your business’ COVID-19 vaccination policy, or return to work strategy, please contact us.
 R v Darling Island Stevedoring & Lighterage Co ltd; Ex Parte Halliday (1938) 60 CLR 601
 Donoghue v Stevenson  AC 562.
The content of this publication is general in nature and provides a summary of the issues covered. It is not intended to be nor should it be relied upon, as legal or professional advice for specific employment situations.
Olexo Workplace Law recommends that specialist legal advice be sought in relation to specific legal issues.