(Statement at 21 February 2021 and subject to ongoing change)
“Vaccination is the most effective way to protect against infectious disease”1. Vaccinations make workplaces safer.
The Australian Institute of Health & Safety (AIHS) strongly encourages all Australians to have any COVID-19 vaccination(s) approved by the Australian Therapeutic Goods Administration (TGA) when they are made available to them, unless they have a medical reason for not doing so, to assist in protecting themselves against COVID-19. “High immunisation rates also protect vulnerable people in our community who cannot be vaccinated, such as very young children or people who are too sick.”1
The AIHS recommends that people conducting a business (PCBU) strongly encourage their workers to have COVID-19 vaccinations when they are made available to them, as one of the controls to migrate the risk of COVID-19. Workplaces must continue to use a range of controls to mitigate the risk of COVID-19 e.g., frequent washing of hands, cleaning of high contact surfaces, reduction of time spent in proximity to others, social distancing, working from home, wearing of masks and other Personal Protective Equipment (PPE), as well as consideration for higher-level controls such as ventilation, as relevant to your particular workplace.
We also recommend that in the coming weeks and months as vaccinations roll out, that PCBU’s review risk assessments and consider controls relating to situations where some workers may have already been vaccinated (of their own accord) and where others have not been vaccinated, with consideration to protecting people at risk.
Can a PCBU make COVID-19 vaccinations mandatory?
The AIHS believes that whether a PCBU can make a vaccination mandatory is an employment law issue and that the issue is not yet fully resolved and will depend on the circumstances of the workplace. We bring the profession’s attention to the following recently published statements:
“Barrister Ian Neil SC and RMIT University academic Anthony Forsyth said employers had the power to issue "lawful and reasonable" directions that could be used to compel staff to get vaccinated, but the law had not been tested in court for that purpose. Mr Neil went further, saying employers' work health and safety responsibilities likely extended to requiring staff vaccinations. "Do they have a positive obligation to require employees to be vaccinated once they become available to satisfy their obligations towards other employees?" Mr Neil said. "It's a question that has never been posed or answered [in court], but my view is that the answer is yes." Employees who refused could be dismissed, though that would not extend to people with allergies, Mr Neil said.”2
The most relevant Fair Work Commission ruling to date which provides some guidance on this is from November 2020 where the Fair Work Commission dismissed an employee’s unfair dismissal claim for being terminated due to refusing to have a flu vaccination citing non-medical grounds. This employee was a child-care worker who worked for an Early Learning company that made flu vaccinations a condition of employment though allowing exceptions on medical grounds in April 20203. There is another Fair Work Commission unfair dismissal claim where the final ruling is still pending where a care assistant had declined to get a flu shot because of her understanding she had an adverse reaction to a flu shot as a child but did not produce supporting evidence for a medical exemption, which resulted in her employer no longer rostering her for work.
In this case, Commissioner Hunt considered a future scenario (in November 2021) when employers of men playing Santa Claus in shopping centres may be required to have a flu vaccination “and if a vaccination for COVID-19 is available, that too”. In such a situation, where social distancing is impossible, a vaccination might become an “inherent requirement” of the job. In the court of public opinion, Hunt said, this might not be considered unreasonable. But a court or tribunal would need to consider the context.
In particular, Commissioner Hunt noted: “In my view, each circumstance of the person’s role is important to consider, and the workplace in which they work in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction. Refusal of such may result in termination of employment, regardless of the employee’s reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector.”3
The AIHS will continue to monitor and report to members any relevant Fair Work Commission or court rulings that provide further definitive guidance as to whether a vaccination is an “inherent requirement” of a specific workplace.
In the meantime:
1 – Australian Government – Department of Health – Why should I get vaccinated for COVID-19? https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/getting-vaccinated-for-covid-19/why-should-i-get-vaccinated-for-covid-19
2 – The Sydney Morning Herald – Bosses have the power to force employees to take the vaccine: experts https://www.smh.com.au/politics/federal/bosses-have-the-power-to-force-employees-to-take-the-vaccine-experts-20210101-p56r64.html
3 - The Conversation – Can my boss make me get a COVID vaccination? Yes, but it depends on the job https://theconversation.com/can-my-boss-make-me-get-a-covid-vaccination-yes-but-it-depends-on-the-job-154054