Can Employers Mandate the Vaccine?

Most workplaces should assume that they cannot mandate the vaccine. However, there may be cases where employers have powers to issue a “lawful and reasonable” direction to their employees to obtain specific vaccinations if they work in a “high risk environment”. These include:

1. Workplaces where employees are likely to interact with people at a higher risk of being infected with coronavirus.
2. Workplaces where employees are likely to interact with people who are more vulnerable to the serious health effects of a prospective coronavirus infection.

Examples of “high risk environments” may include hotel quarantine, border control, and health, child, or aged care settings.

Requirements and Possible Considerations for Mandating the Vaccine

1. Is there a law, a public health order, or a term in a lawful agreement or an employment contract which specifically allows them to mandate a coronavirus vaccine.

Or alternatively:

1. Whether the direction can be deemed “lawful and reasonable”.
2. The unique circumstances of the case.

Lawful and Reasonable

To be considered ‘lawful and reasonable‘ the employer must show that mandating the vaccine is justifiable, and be able to provide evidence that the vaccine is inherent for the safe performance of the employee’s duties.

In Ms Maria Corazon Glover v Ozcare [2021] FWC 231 (Glover), the Fair Work Commission found that shopping centre ‘Santas’ should be vaccinated as an inherent requirement of the job given their contact with young children. Therefore mandating the vaccine in this circumstance was justifiable,

In Ms Nicole Maree Arnold v Good­start Ear­ly Learn­ing Lim­it­ed T/A Good­start Ear­ly Learn­ing [2020] FWC 6083 (Arnold), the Fair Work Commission highlighted that a childcare centre owed a duty of care not to infect the children in its care, therefore justifying the mandatory vaccination of staff.

It is likely we will see that a wide range of industry employers, especially those with workplaces in “high risk environments”, can justify a vaccine mandate under OHS laws given the severe health and safety risks, and high transmissibility of COVID-19.

Unique Circumstances

Medical Reasons

A mandate can be subject to genuine medical exemptions. In such cases, employers must provide reasonable alternatives to employees if possible.

However, in Glover, the Commissioner noted that there may be specific circumstances whereby an employee with a “medical” or “religious” reason can still be terminated for refusing a vaccine if the vaccine can be regarded as an “inherent requirement of the role”.

Other Reasons

A mandate can also be subject to political, religious or other objections. In those cases, the employer must consider the following factors and navigate around them.

1. The nature of the objection.
2. Any consequences in relation to discrimination laws.

Where there is a genuine work, health and safety reason for a direction, the employer is likely to be able to successfully enforce the mandate against an employee without a legitimate basis for refusal.

However, discrimination laws will generally protect certain groups of people from a vaccine mandate. These groups include people with a disability, pregnancy or certain religious beliefs.

Other Considerations

1. The type of work being performed.
2. The ability for that work to be performed remotely
3. Employees’ specific situations.

Employers are encouraged to review specific laws, public health orders, enterprise or other registered agreements, and the employee’s employment contract to substantiate whether there is a specific power or term which allows them to mandate a vaccine.

1. The Government’s and medical bodies’ applicable advice at the time.
2. Other relevant circumstances.

Can Employers Discipline Employees for Refusing the Vaccine?

The answer to this will depend on the circumstances.

If an employee breaches a law or repeatedly fails to comply with a lawful and reasonable direction to be vaccinated, then the employer may be able to discipline the employee. Disciplinary action includes the termination of employment.

Before taking disciplinary action, employers should ensure that they do not breach any terms, obligations or rights under:

1. Any relevant enterprise or other registered agreements;
2. Awards;
3. The employee’s employment contract;
4. Workplace policies; and
5. Public health orders.

It is recommended that the employer discusses the reasons for an employee’s vaccine refusal with the employee before taking any disciplinary action against an employee. This is because it is not generally lawful for an employer to suspend an employee without pay unless permitted by law or a lawful agreement. An employee is also protected by the law from being unfairly dismissed or treated adversely in their employment.

Can Employees Refuse to Attend a Workplace if a Colleague Is Not Vaccinated?

Employees should assume that they cannot refuse to attend a workplace if a colleague is not vaccinated against coronavirus. An employer may be unable to mandate the vaccine, and/or the colleague may have a legitimate reason or exemption for not being vaccinated.

Employees should raise any concerns about the safety of the workplace with their employers before refusing to attend the workplace.

If an employee refuses to attend a workplace for this reason, the employer can issue a lawful and reasonable direction for the employee to attend the workplace. A failure to comply can lead to disciplinary action being taken by the employer.

Conclusion

PH Solicitor understands that the challenges that employees and employers are facing in light of the coronavirus vaccine rollout.

If you would like to discuss your employment rights or your business’ rights regarding the mandating of the coronavirus vaccine, we are here to help. Call our office on (03) 9642 0435 or email admin@phsolicitor.com.au for a confidential discussion with our team.

Sources:

https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace

https://kingstonreid.com/insights-news/mandating-vaccines-for-employees/

This information is general only and is not to be taken as legal advice with respect to your specific circumstances. Should you require advice specific to your circumstances, please contact the team at PH Solicitor at admin@phsolicitor.com.au or by phone on (03) 9642 0435.

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1. Dropping the 75% cap on private and public office workers going into their place of work.
2. Requiring members of the Victorian Public Service to work from the office for at least three days a week.
3. Removing the requirement for employers to permit their employees to work from home if it is reasonably practicable.

These changes have a ripple effect on both employees and employers regarding the right to work from home.

The Right to Work from Home

In order to reduce the risk of coronavirus infection for both office the Victorian Government’s restrictions during the pandemic made it mandatory that “employers not require office workers to work from the office if it is reasonably practicable for the worker to work from home (or another suitable premises)”.

After experiencing working from home during the enforced ‘work from home’ restrictions, people are now more likely to want continue to enjoy the flexibility to work. The implication is that this could have a lasting impact on the way people work.

What are Employers’ Rights?

Coronavirus restrictions no longer require employers to allow staff to work from home if reasonably practicable. This means that employers now have more powers to control the workplace their employees attend and reduce the flexibility to work from home as long as they provide a COVID-safe workplace to employees.

If a staff member does not comply with a direction to work in the office, employers may be able to issue a directive for them to do so, and there are powers to support them in doing so.

However, some employees are still able to retain flexible working arrangements, including the right to work from home, if they wish to do so.

What can Employees Do?

While some employees may prefer to work in the office, others will have enjoyed the ability to work from home. The sudden removal of the requirement for employers to allow their staff to work from home can be an enormous challenge for these employees.

There are some special circumstances that may apply to certain employees which are outlined under section 65 of the Fair Work Act 2009 (Cth).  If these apply employees retain the right to request flexible working arrangements, including the right to work from home. These special considerations apply to the following workers:

1. A person who is a parent, or has responsibility for the care, of a child who is school aged or younger;
2. A carer (under the Carer Recognition Act 2010 (Cth));
3. A person with a disability;
4. A person who is 55 years old or older;
5. A person who is experiencing family or domestic violence;
6. A person who provides care or support to a household member or immediate family member who requires care and support because of family or domestic violence; or
7. A casual employee if:
   1. they have been working for the same employer regularly and systematically for at least 12 months; and
   2. they have a reasonable expectation of continuing work with the employer on a regular and systematic basis.

To make a request for flexible working arrangements, 3 criteria apply; it must be in writing, explain the changes being asked for, and the reasons for the requested change.

Employees without these special considerations will struggle to find direct legal avenues to enforce a right to work from home against their employers.

Conclusion

Paul Horvath Solicitor understands that the pandemic has been very stressful for both employers and employees alike. The recent changes to restrictions will probably add to the stress of some employees who are accustomed to working from home, as well as employers who must now decide which workplace policies to adopt in the post-COVID world.

This information is general only and is not to be taken as legal advice with respect to your specific circumstances. If you would like to discuss your employment rights or your business’ rights in these difficult times, we are here to help. Please contact the team at PH Solicitor at admin@phsolicitor.com.au or by phone on (03) 9642 0435.

Sources:

http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s65.html

https://www.fairwork.gov.au/employee-entitlements/flexibility-in-the-workplace/flexible-working-arrangements

https://www.theage.com.au/politics/victoria/home-versus-the-office-clashes-loom-between-staff-and-bosses-as-rules-eased-20210323-p57dei.html

https://www.premier.vic.gov.au/victoria-further-relax-covidsafe-settings

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