The imminent rollout of the COVID-19 jab is posing tricky questions for employers
By Nigel Ward and Luis Izzo, Australian Business Lawyers & Advisors (ABLA)
As anticipation builds for the arrival of COVID-19 vaccines in Australia, employers are starting to query whether they can direct their employees to be vaccinated.
The simple answer is likely to be “not generally” (although this is yet to be tested in court).
However, for some employers dealing with vulnerable people, the answer is more likely to be “yes” for most of their workforce.
Whilst the principles that courts will apply to resolving this question are well settled, unfortunately, the lack of available scientific data about the effect of the COVID-19 vaccines means that the ability to direct employees to take the vaccine remains both uncertain and subject to an employer’s particular operating environment.
The clarity regarding the answer to this question may evolve as we learn more about the clinical effect of the vaccine in the coming year.
Australian contract law has for decades recognised that employers have a right to issue directions to employees, provided the directions are lawful and reasonable.
Whether a direction is lawful will often be determined by ensuring the direction does not breach any terms of an employment contract, industrial instrument or other employment law.
Whether a direction is reasonable is a question of fact to be determined in the circumstances of each case and will consider a range of factors including the nature of the employment, established custom and practice in the workplace, trade or industry practice, the terms of relevant industrial instruments and contracts and the impact of the direction on employees and the employer’s operations as a whole.
Read more: COVID-19: Should vaccine be mandatory in these sectors?
Courts and tribunals have recognised an employer’s ability to issue directions if they are necessary to comply with the employer’s obligations under occupational health and safety laws.
The primary argument an employer is going to rely upon with respect to the vaccine is that to meet their general obligations to ensure, as far as reasonably practicable, the health and safety of workers, workers need to get vaccinated to protect those in the workplace.
To successfully establish a right to direct employees to take a COVID-19 vaccine, a good understanding of what these vaccines do is required.
At this stage, it appears very likely that the vaccines will help reduce the probability that employees will contract the disease known as COVID-19.
However, for some minority groups, there is no data on the vaccine impact. It is not known whether the vaccines stop the transmission of SARS-CoV-2 (the virus)
Although the vaccines help individual employees from contracting the COVID-19 disease, whether the vaccines stop the transmission of the virus known as SARS-CoV-2 is a different question altogether.
The US Food and Drug Administration (FDA) calls this out on its public FAQ regarding the vaccines:
Most vaccines that protect from viral illnesses also reduce transmission of the virus that causes the disease by those who are vaccinated. While it is hoped this will be the case, the scientific community does not yet know if the Pfizer-BioNTech COVID-19 Vaccine will reduce such transmission[4].
Prominent Australian vaccine and immunology experts from both RMIT and UQ have identified that it remains entirely possible for vaccinated individuals to be exposed to the virus, carry it and transmit the virus to others, without having contracted the COVID-19 disease themselves[6].
These experts have, however, speculated that taking a vaccine "should also hopefully be reducing viral load in people" and therefore reduce their likelihood of shedding the virus and infecting someone else[7].
However, the impact of the vaccine on infection rates is simply unknown.
Some minority groups were not part of the COVID-19 vaccine trials at all. By way of example, pregnant women were not included in the trials, meaning there is no data on the impact of the vaccine on this group. There is also no data on the impact of the vaccine on breastfeeding or infants being breastfed by vaccinated mothers.
The effect of the above is that an employer cannot presently establish that the vaccine will prevent or reduce transmission of the SARS-CoV-2 virus in the workplace. There is simply a prospect that the vaccine should or might have this effect.
So, can employers issue a direction to an employee for them to take the vaccine?
The mere individual health benefit of a vaccine to employees is unlikely to form a sufficient basis to direct the employees to take the vaccine.
Such a direction would be no different to directing employees not to smoke on breaks or not to drink excessively or take recreational drugs at home, where there is no discernible impact upon the workplace. None of these directions could ordinarily be made under existing workplace laws.
To establish a reasonable basis to direct the taking of a vaccine, employers would need to demonstrate there is a real prospect of safety benefit to others who come into contact with the workplace, whether that be other workers or customers.
The deficiencies in the existing scientific data mean that there is a real question mark over the legitimacy of directing employees to take a vaccine in many industries.
Read more: COVID-19 vaccine: NSW Premier suggests venues could bar entry to those who refuse jab
The scenario is likely to be different in industries exposed to vulnerable persons such as aged care, health services or services for persons with disabilities.
The significantly higher risks that such vulnerable persons become exposed to if they come into contact with SARS-CoV-2 is likely to justify a more cautious approach by employers and will generate greater concern from judicial officers.
It is more likely that Courts and Tribunals would consider the direction to take a vaccine to be lawful and reasonable where the direction is being made to protect vulnerable persons, even where the probability of the vaccine reducing infection rates is uncertain (as is the case at present).
Some employees may be unable or unwilling to take a vaccine because of the higher risks associated with the vaccine being dispensed to them or because of their religious beliefs (eg. employees with disabilities/elderly employees or some employees of some religions that do not permit vaccination).
Imposing a requirement on these employees to take a vaccine may result in employers engaging in ‘indirect discrimination’ in breach of the Age Discrimination Act 2004, the Disability Discrimination Act 1992 or the Race Discrimination Act 1975. Whether unlawful indirect discrimination arises will particularly depend on:
Before disciplining any employee in this category, employers should seek legal advice specific to their circumstances.
As highlighted previously, certain groups of people were not involved in the fast-tracked clinical trials. For instance, we understand pregnant women were not involved in the clinical trials.
Accordingly, despite anything else, some groups may have a legitimate basis for declining the vaccine irrespective of the work environment they are in.
This alert demonstrates that navigating the path to a successful compulsory vaccine rollout in a workplace is likely to be fraught with complexity and danger.
The same outcome could be achieved by employers more simply if Public Health Orders are issued requiring persons to be vaccinated before entering particular workplaces. This type of approach was adopted by Victoria with respect to health care workers taking flu vaccines in 2020.
It is possible State Governments might regulate in this space, particularly if the early disputes surrounding COVID-19 vaccinations are not determined in favour of employers looking to implement safer workplaces.
We would suggest that you adopt the same approach you currently do to things like flu vaccines. Most employers encourage employees to get these as part of employer welfare programs and we would recommend doing this for COVID-19 vaccinations.
