Mandatory Vaccines in the Workplace – Legal or Not?

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Insights From MCA Accountants

Mandatory Vaccines in the Workplace – Legal or Not?

Action Points

On 8 October 2021, the Victorian Government released a public health order that all employers that employ workers in certain industries cannot allow non-vaccinated workers to work from anywhere other than their homes.

In addition, all employers must collect evidence of which employees are vaccinated, and if they are not fully vaccinated, the dates that they have booked in to get their next vaccination dose.

Key Links

THE PUBLIC HEALTH ORDERS

The public health orders released on 8 October 2021 are effective immediately and cover workers in the following industries and roles:

  • Accommodations worker;
  • Agricultural and forestry worker;
  • Airport worker;
  • Ancillary, support, and welfare worker;
  • Authorised officer;
  • Care worker;
  • Community worker;
  • Creative arts worker;
  • Custodial worker;
  • Emergency service worker;
  • Entertainment and function worker;
  • Funeral worker;
  • Higher education worker;
  • justice service centre worker;
  • manufacturing worker;
  • marriage celebrant;
  • meat and seafood processing worker;
  • media and film producing worker;
  • mining worker;
  • physical recreation worker;
  • port or freight worker;
  • production and distribution worker;
  • professional sports, high-performance sports, or racing person;
  • professional services worker;
  • public sector employee;
  • real estate worker;
  • religious worker;
  • repair and maintenance worker;
  • retail worker;
  • science and technology worker;
  • social and community service worker;
  • transport worker;
  • utility and urban worker; and
  • veterinary and pet/animal care worker.

 
In true Government style, the above descriptions aren’t overly helpful (and you can read the actual definitions of each from within the public health order) but essentially these rules cover pretty much all essential workers that were not already covered by a public health order (such as construction and aged care which have their own set of rules).

Essentially, as of RIGHT NOW, every worker covered by this order needs to be vaccinated or be booked in to get vaccinated unless they work from home.

In addition, employers are required to gather information from each employee on their vaccination status and when they are booked in for their next jab. We note that the employer is entitled to ask for evidence under these public health orders.

There are exemptions from these rules for people that are unvaccinated due to medical grounds, in which case a medical certificate needs to be obtained (more on this later in this article).

Disclaimer

We are not lawyers or HR experts. We have collated info from newsletters and articles provided by various experts to provide an easy to read guide to this complex legal issue, but we do not provide any advice or guarantees that the information in this article will stand up when this issue is eventually fully tested in court.

You should get your own advice in relation to this issue.

NO JAB, NO JOB - IS IT LEGAL?

The issue of whether it is legal for a business to say “no jab, no job” is a hot topic. There are so many legal factors in this, and there is so much pent up emotion on both sides of this argument. Just to be clear, this isn’t an article as to whether the Government or businesses should be able to mandate that being fully vaccinated is a condition of work, or whether people should or should not get vaccinated.

The issue here is essentially whether it is legal for a business to say to its staff “no jab, no job”, and within that is the following:

  • Are the public health orders legal in this regard (short answer appears to be yes, but we understand that this is going to be tested in court very soon by police and/or teachers who are being forced to have the COVID vaccine);
  • Do the public health orders override the obligations under the Fair Work Act (e.g. to not discriminate);
  • Can businesses be held liable for issues in forcing people to get vaccinated, even when done under public health orders (e.g. when given a choice of no income or getting a vaccine, it’s not much of a choice for the employee – but what happens if the employee has side effects);
  • Can businesses apply this policy if there is no public health order;
  • Can businesses choose not to apply public health orders; and
  • Do businesses have an obligation to keep other employees and customers safe from COVID, to the extent that requiring employees to be vaccinated is therefore reasonable.
 
In our view, businesses are stuck between a rock and hard place. Legally bound to enforce Government directions, but will be the one dealing with the fallout of it and ultimately the one “holding the can” should employees be unhappy at Government policy.

A RECENT CASE

Not that long ago, the Fair Work Commission recently heard and ruled on a case featuring an aged care facility and a worker who refused to get a flu shot. This case was heard by the “full bench” of the FWC (so it’s gone past mediation and all the normal processes, and was allowed to get to a full bench hearing).

In NSW (where the employer was located), under a public health order this aged care facility was effectively bound to enforce a “no jab, no job” policy. The employer enforced this, and employee refused to get a flu shot. The employee was dismissed, and then took the matter to Fair Work.

Essentially this case is a pretty good indication of our current COVID sitution because the mandatory flu shot was given under a public health order.

The full bench was split, but the majority held that the employer was within their rights to dismiss the worker for refusing to have the flu shot. The reasoning was essentially because the employer was merely enforcing a public health order and was not directing the employee to get the flu shot under their own volition, the dismissal was valid.

It is possible that this case will be appealed to the Federal Court, so this case may not be finalised – but for now it suggests that if business are simply doing what the Government tells them to do, they are OK.

MEDICAL EXEMPTIONS

One of the employees arguments is that they did not want the vaccine due to a potential allergy. The employee provided photos of a previous allergic reaction to (alleged) prior flu shots and a doctors note (which provided no real details), but the employee failed to provide any specific evidence that they were allergic to any of the vaccine’s contents.

It was considered whether an employer has the right to request more info and specific information (i.e. is a generic doctors note sufficient or not), and Fair Work decided that the employer is entitled to ask for that information. We note however that this would need to be taken in the context of the employer abiding by public health orders and doesn’t mean employers can now ask for extra detail for things like sick leave.

In making their decision, Fair Work assessed all of this and essentially said that for those with a genuine medical reason to not get vaccinated, employers cannot force them to – but the employee needs to be able to prove it.

FAIR WORK IS SPLIT

It is also important to consider that Fair Work itself is split on this issue. The above case was not unanimous, the deputy president of Fair Work was against the employees dismissal stating the decision had denied the worker protections under the Fair Work Act in part because of an inference that she holds a general anti-vaccination position. Never have I more strenuously disagreed with an outcome in an unfair dismissal application’.

The deputy president is very strong in her wording. Can you trust Fair Work to be consistent on this matter when there are strong opposing views within Fair Work?

FAIR WORK'S PUBLIC STATEMENTS

Fair Work publicly states that employees are entitled to enforce a “no jab no job” policy where:

  • required under Law (e.g. a public health order);
  • under an enterprise agreement; or
  • if reasonable based on the industry and work (and Fair Work go on to split workers into 4 tiers based on risk, and in general unless the worker is an essential worker and either in a high risk setting or operating in an area with a significant amount of COVID cases, then this can’t be done)

 
At least publicly, Fair Work seems to be reasonably clear that it supports businesses that enforce mandatory vaccines (when reasonable).

ALTERNATE WORKING ARRANGEMENTS

Any policy that means an employee can be dismissed would need to be proportional to the risks involved. We can all understand the “no jab, no job” policy (no judgements, but agree with it or not, you can understand the reasoning behind it), but context is important.

Can the public service (for example) enforce the policy on staff members that have no contact with the public? Can an accounting firm enforce it on staff that have the capability to work from home?

The above case involves an aged care worker. If you think of a scale of risk of infection, an aged care worker is at the high risk end of the scale given they work with the most medically vulnerable in our community, a desk bound worker is down the other end – is the same policy equally applied to everyone?

It’s an issue that has not been tested in court that we are aware of.

WHERE TO FROM HERE?

It appears to be relatively settled (for now) that where employers are following Government mandates, employers are able to say “no jab, no job”, and this extends to workplaces and roles that are high risk. Where employees feel they should be exempt, employers are able to (and probably duty bound) to require specific evidence of any exemptions.

That’s not to say employers should not be flexible, the best outcomes will be achieved when employers and employees come together and work out a solution. Where two parties are in disagreement, talking through the issues (without emotions) are likely to find some common ground to work towards.

Where employers are wishing to implement a “no jab, no job” policy without public health orders, tread carefully and ensure there is a legitimate safety reason for doing so. The reality is that the risk unvaccinated people pose to vaccinated people is minimised given the vaccine protects us from the most serious effects of COVID. Fair Work is unlikely to accept an argument of “I don’t want unvaccinated people passing on the virus” given the reduced risk.

The next month will be important with various groups looking to challenge the public health orders, but until then it appears that the public health orders are legally valid. Employees that disagree need to understand that employers are legally bound to enforce those rules and not direct any anger of angst at your employer. By all means talk to them, but understand that they are legally obliged to follow them.

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