Compelling COVID-19 Vaccinations in the Workplace

As Australia’s vaccine rollout gains momentum and we edge closer to the promise of a ‘Covid-normal lifestyle’ free of lockdowns, many employers are, understandably, eager to put early measures in place to protect against further business disruption.

One key question which is now commonly being posed is whether employers can compel their employees to undergo vaccination.

At this point in time, employers may only require their employees to undergo vaccination if a law or public health order requires vaccination within a specific setting, or where it would otherwise be both lawful and reasonable for an employer to direct its employees to be vaccinated.

As to whether such a direction may be ‘lawful and reasonable’ must be considered on a case-by-case basis.

To be ‘lawful’, the direction must comply with an enterprise agreement, Award or other registered agreement and all applicable laws, including state and federal anti-discrimination laws.

Currently, there are government directions in place mandating vaccination against coronavirus only within specific high-risk sectors such as health care, aged care, quarantine services, and transportation and so, employers working within other industries will face some difficulty in establishing the lawfulness of any workplace direction compelling vaccination.

The burden of proving the ‘reasonableness’ of such a direction rests with the employer. Relevant factors to be taken into account include:

  • the nature of the employer’s business;
  • the extent to which its employees must work in public-facing roles;
  • the extent of community transmission within the immediate locale of the employer’s worksite;
  • the risk of viral transmission to employees, customers or other members of the community;
  • the effectiveness and availability of vaccines;
  • workplace health and safety obligations; and
  • whether or not employees have a legitimate reason to oppose vaccination.

To assist in assessing whether it may be reasonable to direct employees to be vaccinated, the Fair Work Ombudsman (FWO) has categorised work into four broad tiers, as follows:

  • Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control);
  • Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care);
  • Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees, or the public in the normal course of employment (for example, stores providing essential goods and services); and
  • Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

A direction requiring vaccination is more likely to be reasonable when aimed at employees performing Tier 1 or Tier 2 work than if aimed at employees performing Tier 3 or Tier 4 work where the risk of viral transmission is considerably lower.

Even where an employer proposes to make a direction which may be considered to be lawful and reasonable when having regard to the factors set out above, the employer must first ensure that it complies with its consultation requirements. For real estate agents, those consultation obligations are clearly set out in the Real Estate Industry Award.

It is equally important that, prior to issuing a direction requiring employees to undergo vaccination, the employer has in place a policy which allows for reasonable adjustments to be made on account of those employees who are unable, or unprepared, to be vaccinated for valid reasons such as medical conditions, and/or cultural or religious beliefs.

Any employer who does not make such accommodations may face exposure to a finding of contravention of anti-discrimination legislation and/or the general protections provisions set out in the Fair Work Act 2009 (Cth).

Conclusion

At this time and, given that other workplace modifications could be readily made to minimise the risk of transmission in the course of a real estate agent performing their duties, it is highly unlikely that principals of real estate agencies could lawfully and reasonably compel their employees to undergo vaccination against the coronavirus.

Nevertheless, in accordance with the recommendations of the FWO, principals are encouraged to collaborate with their employees with a view to agreeing mutually suitable solutions which suit their particular workplace and their individual needs. To this end, principals are free to incentivise employees to undergo vaccination, provided the incentive scheme implemented does not directly, or indirectly, discriminate.

Of course, with the State governments increasingly indicating that only those individuals who have been double-vaccinated will enjoy freedom from government-imposed restrictions over the coming months, considerations as to how an employer may compel employees to undergo vaccination may well become irrelevant.

Nevertheless, principals are urged to seek independent legal advice prior to issuing any direction for employees to undergo vaccination or otherwise seeking to implement an incentive scheme designed to encourage employees to be vaccinated.

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