Can an employer direct an employee to be vaccinated? We have previously written about the COVID-19 business restrictions in Queensland and how an employer may require an employee to be vaccinated. While that may be the case, it is not as straight forward as it may seem. There are specific considerations when determining who must be vaccinated and it is determined on a case-by-case basis.
Employers can only direct their employees to be vaccinated if the direction is lawful and reasonable. What is lawful and reasonable is dependent upon the facts of the situation and is to be assessed on a case-by-case basis. What may be lawful and reasonable to direct to one employee, may not be lawful and reasonable to direct to another.
What is lawful?
A direction is lawful if it complies with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies (e.g., an anti-discrimination law).
What is reasonable?
To determine whether a direction is reasonable, consider the following:
- the nature of the workplace; for example, the extent to which employees need to work in public facing roles, whether social distancing is possible, or whether the business is providing an essential service;
- the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta and Omicron variant among employees, customers, and the members of the community;
- the terms of any public health orders in place where the workplace is located;
- the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant;
- work health and safety obligations;
- the circumstances of each employee, including their duties and risks associated with their work; whether the employee has a legitimate reason for not being vaccinated, for example, a medical reason; and
- vaccine availability.
Consideration of work roles
To assist in the determination of what is lawful and reasonable, work roles can be divided into 4 broad tiers:
Tier 1 work refers to work where employees’ duties include interacting with people with an increased risk of being infected with COVID-19 e.g. employees working in hotel quarantine or border control.
Tier 2 work refers to employees that are required to have close contact with people who are particularly vulnerable to the health impacts of COVID-19 e.g. working in health care or aged care.
Tier 3 work refers to employees who interact with other employees and customers e.g. working in stores providing essential goods and services.
Tier 4 work refers to employees who have minimal face-to-face interaction.
It is more likely to be reasonable to direct an employee performing Tier 1 or Tier 2 to be vaccinated given the increased risk of employees being infected with the virus or passing the virus onto a person who is vulnerable to the health impacts of the virus. However, it is likely to be unreasonable to enforce a Tier 4 employee to be vaccinated, given their role consists of minimal face-to-face interaction with less risk of transmission of the virus.
For employees in Tier 3 work, it will likely be unreasonable to direct them to be vaccinated where there has been no community transmission of the virus for some time in the area. However, it will likely be reasonable where there has been community transmission of the virus in the area, and they are operating in a workplace that needs to remain open to provide essential goods and services.
Keep in mind, regardless of the tier of work, what may be reasonable is fact dependent.
The Fair Work Commission Full bench (“FWCFB“) recently overturned a vaccine mandate. In October 2021, BHP required all workers to be vaccinated against COVID-19 as a condition of site entry to its Mt Arthur coal mine in New South Wales (“Site Access Requirement”). Thirty miners lodged a dispute against the Site Access Requirement through the Construction, Forestry, Maritime, Mining and Energy Union.
The FWCFB found that the purpose of the Site Access Requirement was to protect the health and safety of their employees. Therefore, the Site Access Requirement was lawful.
In consideration of whether it was reasonable, BHP failed to comply with its consultation obligations in accordance with sections 47 and 48 of the Work Health and Safety Act 2011 (NSW) as they merely asked employees whether the mandate should be imposed without providing information relating to the reasons, rationale and date supporting the proposal.
The FWCFB found that if the mine workers were consulted in a reasonable way before they introduced the mandate, their direction would have been found to be reasonable. However, they noted a range of factors that weighed in favour of the Site Access Requirement due to reasonableness, including the following:
- it is directed at ensuring the health and safety of workers;
- it has a logical and understandable basis;
- it is a reasonably proportionate response to the risk created by COVID-19;
- it was developed having regard to the circumstances at the workplace, including the fact that workers could not work from home and must come into contact with workers in the workplace;
- the timing for its commencement was determine by reference to circumstances in NSW at the relevant time; and
- it was only implemented after they spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the Mine.
This decision highlights the importance of providing proper consultation when significant changes will impact employees. Employers must ensure they comply with consultation obligations under work, health and safety legislation and any relevant award or enterprise agreement
How we can help
Employers are advised to obtain their own legal advice if they’re considering making COVID-19 vaccinations mandatory in their workplace. At Cohen Legal, we can assist you with advice regarding your rights as either an employer or an employee facing mandatory vaccination requirements. Our business is protecting yours.