With several COVID-19 vaccines on the horizon, employers might want to make them mandatory for all employees. However, legally, are they allowed to?
The UK has just approved the Pfizer COVID-19 vaccine for immediate distribution across the country. However, Federal health minister Greg Hunt has told Aussies not to expect a vaccine until March 2021, but that hasn’t stopped discussion around what happens when one finally does become available, especially in a workplace context.
In an article for the Sydney Morning Herald, Qantas CEO Alan Joyce suggested vaccinations might be a requirement for all airline passengers and Ticketmaster has previously considered ways to check if punters are vaccinated before attending events.
Workplaces are also contemplating how to navigate a vaccine and the possibility of mandating it for employees. Because of this, all eyes were on the Fair Work Commission as it recently considered the case of an early childhood teacher who was terminated for not getting the flu vaccine.
The case was dismissed, but still provides insight into how employers can approach the sensitive issue of COVID-19 vaccines in the workplace.
Mandating the flu vaccine
In the case of the early childhood centre, the employer asked all staff members to get the flu jab by March 2020. The employee refused the vaccination and her employment was terminated as a result. Her refusal was not for medical reasons, but due to personal preference.
In the submission to the FWC, the employee argued her employer did not make reasonable adjustments to accommodate her vaccine refusal, but deputy president Ingrid Asbury said the employer’s direction was lawful and reasonable in the context of the workplace – she worked closely with children.
There are two important points to this case, says Michael Byrnes, employment lawyer partner at Swaab. Firstly, the reason for the employee to object. And secondly, the type of work being undertaken.
“In this case the employee was a conscientious objector to vaccines. If there was genuine medical, health or religious reasoning behind it, the FWC might have ruled differently,” says Byrnes.
Byrnes believes if the employer had been an aged care facility or health centre the outcome would have been similar, but if an employee could complete their work remotely or didn’t come into contact with vulnerable people, then employers would need to make accommodations.
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Mandating the COVID-19 vaccine
The flu is one thing, COVID-19 is entirely different.
Byrnes says given the seriousness of the virus and the high infection rate, employers would have a strong legal position to mandate the vaccine.
“I think the vast majority of employers would not have the right to mandate that an employee have a flu vaccination,” says Byrnes. “But in order to maintain a safe workplace for employees and customers, it would be the employers prerogative to issue a direction to get the COVID-19 vaccine.”
Even if an employee rejects the vaccine on grounds other than medical or religious reasons, an employer shouldn’t jump to terminating their employment, he adds.
“I suspect in most cases being an anti-vaxxer would weaken the position of an employee refusing a mandatory vaccine, but employers should always take steps to accommodate the employee before considering termination.”
For many workplaces, accommodations would likely include things like remote work or restricting their interaction with other employees and clients.
“Where you’ve got an employee who has a health or medical reason for not wanting a vaccination, the employer may have an obligation under the Disability Discrimination Act to make reasonable adjustments,” says Byrnes.
It is also possible workplaces could ease the mandate as the vaccine becomes more widespread meaning the herd protection of colleagues would render their vaccine status a non-issue.
If you decide to mandate…
A direction to an employee to be vaccinated is not to be made lightly, warns Byrnes. He compares it to other invasive procedures such as urine, saliva or blood testing in the workplace.
If your organisation decides to make the COVID-19 vaccination mandatory, Byrnes outlines a couple of things to consider:
- Have a good communication strategy – explain to employees why you are requiring them to get the vaccine and detail the alternatives for those who refuse. Employers should also make sure communication around the direction is two way so employees have an opportunity to ask questions and voice concerns.
- Put processes in place – ensure there is a clear process if an employee does refuse, so a discussion can take place on why they are refusing and what will happen moving forward (be that an adjustment of their role or terminating their employment).
- Allow employees to get vaccinated during work hours – the Federal government said the vaccine will be free for all Australians, so there will likely be no additional out of pocket expenses for employers. You shouldn’t direct employees to use a particular vaccine supplier or administrator of the vaccine.
Byrnes highlights the importance of communication .
“People will refuse the vaccine for health reasons, some will refuse because they are anti-vaxxers. You don’t want to create a third group who refuses because they feel their employer has gone authoritarian, telling them what to do with their bodies,” says Byrnes.
“Make sure that two-way dialogue is there. Explain that it is part of your workplace health and safety and this is something everyone can do to protect vulnerable people.”
There isn’t much case law around workplaces and vaccines as it stands, but Byrnes says employers should keep an eye on the FWC as more flu vaccines cases are in the pipeline. These cases will likely have an impact on how employers can approach the COVID-19 vaccine.
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