COVID-19 vaccination roll out begins in UK: What does it mean for Australia’s employers?

Key takeaways

• In certain sectors like healthcare, the mandating of vaccinations is a very real possibility
• If tested in court, employers will have to demonstrate assessment of all determining factors and make decisions on case-by-case basis
• Any future action by employers will depend on whether vaccine can be considered reasonable health and safety measure

The UK's COVID-19 vaccinations begin this week, sparking big questions around where employers will stand on immunisations.

In Australia, Qantas boss Alan Joyce said once a vaccine is widely available, all passengers flying internationally will have to show proof they’ve had the jab.

The strong ‘no vax, no fly’ position suggested by Joyce has reignited debate over whether employers will have the legal power to force their employers to be vaccinated.

He said Qantas is looking at changing its passenger terms and conditions to include proof of vaccination, saying it will be a “necessity” for anyone looking to fly internationally.

As well as moral and ethical ramifications, the potential for a vaccine poses a number of legal dilemmas that employers and HR professionals will have to consider.

HRD spoke to Michael Michalandos, partner and head of Asia-Pacific employment at law firm Baker & McKenzie, who shed some light on the tricky situation behind mandating vaccinations.

“If it’s mandated by the government, then it won’t be an issue for employers,” he told HRD.

“But if it’s left with employers, they are going to have to make difficult decisions as to whether it is a reasonable measure to enforce vaccinations.

“A number of things will have to play into that decision-making process.”

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Firstly, employers will have to consider the role of that employee, the vulnerability of those they come into contact with during their employment and the risk involved if they were to refuse to be vaccinated.

Employers will also have to weigh up the current threat of COVID-19 and how close the country or state is to eliminating it all together.

Then, there is the risk of possible side effects. Have those been investigated fully and do those risks outweigh the need for that employee to be vaccinated?

Michalandos said employers would need to make decisions on a case-by-case basis for each employee, weighing up all the different risk factors.

“In areas where there is high risk, for example if they are dealing with vulnerable people, there would be a greater argument that a vaccination is a reasonable work health and safety measure,” he said.

“Employers have a duty to take reasonable precautionary measures to ensure health and safety in the workplace and that would include carrying out a risk assessment.

“But in certain sectors, you could see mandating vaccinations becoming a possibility.”

In the US, private employers are legally able to include certain types of vaccination as a pre-employment requirement.

Hospital and nursing home staff, for instance, are required to get an influenza shot each year given the nature of their work.

Employers would also need to consider the appropriate resolution for an employee who refused to be vaccinated.

For sectors like healthcare where the risk is much higher and employees are unable to maintain social distance, what would an employer’s recourse be if a worker refused immunisation?

Could they fire them, or would that lead to a costly unfair dismissal claim?

Will we see mandatory vaccinations written into employment agreements for certain sectors, such as health or aged care?

Read more: COVID-19 vaccine: Return to office or work from home?

Michalandos said it is unlikely a court would look favorably on a situation where an employer did not try to offer an alternative, for example allowing that employee to work from home, and that an employer would have to prove having the vaccination is a necessity under their health and safety duty.

In some sectors, the unions could also play a role in pushing back against mandated vaccinations unless it is proven to be a reasonable health and safety measure.

The unions will have to juggle their responsbility for the collective safety of a workforce with the individual rights of employees.

As of yet, there is no clear answer, but with the UK’s imminent vaccination rollout it is an issue that will be tested sooner than we may think.

Earlier this year, Prime Minister Scott Morrison drew criticism for suggesting workers could face such requirements. He later backtracked and stressed there would be no compulsory vaccines.

Michalandos believes it is unlikely Morrison’s government will legislate the need for vaccinations and said most likely, it will come down to the employer.

He urged businesses to keep their ear to the ground and wait for guidance from SafeWork as to whether vaccinations will be classed as a reasonable health and safety measure.

In the case of Qantas employees and passengers, Michalandos pointed out that the ability to mandate vaccinations in the aviation industry will also depend on the jurisdiction where the plane lands or takes off from.

“The other problem to consider is how long are these vaccines going to last? Are they going to ask you to keep your shots up to date?” he said.

“I suspect that in future, you may find that if you want to visit a certain jurisdiction, it does require you to have some sort of vaccination passport.”