To vaccinate or not to vaccinate?

In December 2020 we outlined some of the key flexibilities that employers may have to navigate in 2021. Despite the “say goodbye to 2020” new year hopes, 2021 workplaces are not about to return to the old “normal”.

Various vaccines on the horizon are now the focus of attention, and many have asked “can an employer demand vaccination as a requirement for continuing employment” and “can an employer dismiss an employee who refuses to get vaccinated”?

Of course, it would be easier if the answer could be a yes or no.  Unfortunately, this is not a one answer fits all.  So, now is a good time for employers to begin to plan for this question and consider some of the key issues that will affect the answer.  These key issues include:

1. workplace health and safety and the obligation to provide a safe workplace (so far as is reasonably practicable);
2. the nature of your work and your customers and clients;
3. health directives from your State’s health officers;
4. alternative work arrangements if someone refuses to be vaccinated; and
5. why has someone refused to be vaccinated.

Workplace Health and Safety

Employers must ensure work health and safety, and in the context of WHS language the transmission of COVID-19 is a hazard.  Since it is a hazard, the risk of transmission at work must be assessed (just like other hazards in the workplace must be assessed).

Different workplaces and work activities will have different transmission risk levels.  For example, the risk of transmission in an aged care facility where there is frequent physical/close proximity contact, will be greater than the risk of transmission in a call centre in which physical distancing is easier to implement and in which communication and transactions can be done electronically.  Vaccination may not be a necessary control for one workplace compared to another workplace.

Employers must not apply a blanket application of vaccination as a control measure without a properly based risk assessment. Claiming that vaccination is required without a work health and safety risk assessment will be fraught with dangers for the employer.

The nature of customers

Employers need to properly assess their customers, clients and the workplace activity and interactions. If all customer interaction and services are done electronically, then vaccination may not be as critical as it will be to businesses that interact with customers who are at a high risk of complications from COVID-19.

If your plumbing business has contracts to undertake work at an aged care facility, then the employees you send to do that work may need to be vaccinated as part of a proper work health and safety measure.  Employers need to undertake an assessment of their customers and clients and the risk to those customers and clients if workers are not vaccinated.

Healthcare directives

At various times during 2020, there were healthcare directives that, if they remain in place in 2021, will impact on vaccination.  In most states, there were healthcare directives that all persons visiting an aged care facility had to have had a flu vaccination and be able to produce a vaccination certificate to that effect before entering the facility.

Employers will need to monitor review any healthcare directives that may impose a similar requirement for a COVID-19 vaccination. If such a government health directive exists, and an employee’s work and employment requires attendance at a facility or place for which vaccination is mandatory, an employer will be more able to mandate COVID-19 vaccination as a condition for ongoing employment.

Alternative arrangements

Even with something like a health directive, that is not the end of the story. Before considering dismissal, employers are going to have to consider if there are alternative work arrangements that would alleviate the need for vaccination.

For example, if a business supplies services to aged care facilities, and if an employee can be re-assigned to a work team that does not undertake work at an aged care facility, then it may not be reasonable for the employer to insist that the employee be vaccinated as a prerequisite for employment.  If an employer can reasonably re-assign an employee to work but does not require vaccination, that is a step that should be taken before dismissal is considered.

Vaccination refusal reasons

If an employee refuses vaccination because of a valid medical reason or due to a genuinely held religious belief, then termination of employment because of the refusal to be vaccinated may (at least on its face) constitute unlawful discrimination.

There are defences to an unlawful discrimination claim.  Those defences focus on – can the employee meet the inherent requirements of the role – or is the otherwise unlawful discrimination necessary in order to comply with another statutory obligation, such as a work health and safety obligation.

Employers will have to factor in any potential discrimination claims.

What should employers do?

The key steps for employers is that they must not impose a blanket rule “be vaccinated or be dismissed”. Rather, employers must plan for what is reasonable, safe and necessary when vaccinations become available.

1. Consider your work health and safety requirements and assess the risks of transmission of COVID-19 given your particular workplace and work activities. From there, employers can determine if vaccination is an essential hazard eliminating or minimising requirement.
2. Identify any statutory or health directive requirements making vaccination mandatory for the type of work or workplace.
3. Consider any alternatives to vaccination which will still meet the same work health and safety control measures required to make work safe for employees and customers and clients.
4. Identify why the employee is refusing vaccination.  If it is for one of the attributes for which it is unlawful to discriminate, consider whether the requirement for vaccination is essential to be able to carry out the inherent requirements of the role or whether it is essential to comply with a work health and safety obligation.

Questions

If you are unsure about whether vaccination may be a necessary safety obligation or whether based on your circumstances, vaccination is a reasonable and necessary direction, please contact any member of our Employment, Workplace Relations & Safety team(s).

Disclaimer

This information and the contents of this publication, current as at the date of publication, is general in nature to offer assistance to Cornwalls’ clients, prospective clients and stakeholders, and is for reference purposes only. It does not constitute legal or financial advice. If you are concerned about any topic covered, we recommend that you seek your own specific legal and financial advice before taking any action.