Workplace vaccinations a prickly business

As usual, the answer on a complicated matter involving a combination of legal rights and responsibilities is “it depends”.

At a federal level, Prime Minister Scott Morrison has maintained the Australian Government policy of providing free and voluntary vaccines.

Only this month, he ruled out using federal orders to compel workers to get vaccinations or to indemnify employers who vaccinated their workers.

“The vaccination service is free and it is not mandatory. That’s an important principle. We are not going to seek to impose a mandatory vaccination program by the government by stealth,” Mr Morrison said early this month.

States and territories have introduced some mandatory vaccinations in any case, such as for childcare and disability care workers in NSW and for some residential aged care workers in other jurisdictions. Other mandatory measures are being considered.

Unions and business groups remain concerned that both employers and workers remain confused, while some businesses have already pressed ahead with the requirement for employees to be vaccinated.

Victorian-based fruit and vegetable company SPC has mandated vaccinations for employees, saying those without a jab by November won’t have access to worksites (or their jobs). That matter is set to be tested in court.

Our Community board member and leading ethicist Simon Longstaff has argued that those considering the ethics of the issue would be well served to consider vaccinations as being a condition for doing something, including work – along the lines of a vaccine “passport”, an idea gaining traction in many quarters.

In this fraught environment, Our Community’s legal partner Maddocks suggests that organisations familiarise themselves with the latest guidance from authorities and examine options for using carrots as well as sticks.

The current position of the Fair Work Ombudsman is, “In some cases, employers may be able to require their employees to be vaccinated against covid-19. Employers should exercise caution if they’re considering making covid-19 vaccinations mandatory in their workplace and get their own legal advice.”

Maddocks partner Catherine Dunlop and colleagues Christine Maibom and Elizabeth Reed have sought to clear up the situation in their recent article “COVID-19 vaccinations: Can you mandate and should you incentivise?”

Their advice summarises and explains the recent Fair Work Ombudsman’s guidance, which states that the pandemic “doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus”.

Maddocks has highlighted the suggestion that “employers may wish to consider incentivising vaccination in their policies, which has been commended as a useful and practical alternative to a direction”.

Incentives could include discounts, vouchers, tickets and additional time off for vaccinations.

Maddocks has also explored the issue in detail in the “Maddocks on the Mic” podcast.

For those organisations considering a vaccine mandate, the Fair Work Ombudsman has divided workers into four broad “tiers” ranging from Tier 1, which covers employees working in hotel quarantine, to Tier 4, which would include those with minimal face-to-face interaction, such as workers able to work from home.

Maddocks says anyone examining a potential vaccination policy or direction should examine the updated guidance, which suggests considering:

• the nature of your workplace (do your employees work in public facing roles, is social distancing possible, and is the business providing an essential service?)
• the extent of community transmission where the workplace is located, and the risk of transmission among employees, customers or members of the community
• work health and safety obligations
• each employee’s circumstances, including their duties and the risks associated with their work
• whether employees have a legitimate reason for not being vaccinated
• vaccine availability.

“Employers need to be cautious in issuing any direction which mandates vaccination. In particular, employers should be wary of introducing a blanket policy or direction, given the need to consider each employee’s role and circumstances as one of the above factors,” Ms Dunlop writes.

Previously, Maddocks has suggested organisations considering their vaccination-at-work plan should examine:

• workplace health and safety and occupational health and safety obligations
• legal and government recommendations for your sub-sector
• the type of work and level of risk
• the severity of the illness and effectiveness of the vaccine in question
• how contracts require compliance with policies
• the features of any mandatory vaccination policy.

Maddocks has stressed that the legal situation is likely to continue to change and urges organisations to undertake risk assessments and consultations and seek legal advice before mandating any vaccinations.