These factors will impact the success of a mandatory jab policy
By Barney Adams, senior associate at Macpherson Kelley
Many law firms, including Macpherson Kelley, have written articles that consider whether it would be “lawful and reasonable” for a hypothetical employer to mandate COVID-19 vaccinations. Interest in this subject only increased following announcements from SPC, Qantas, Virgin and now Telstra that vaccination will become mandatory for staff, despite the absence of any applicable public health orders.
What anyone who has read one of these articles will appreciate is that the answer to this question is completely fact dependent. There is no easy or simple answer and the need for nuanced and tailored advice is inescapable.
Beyond considering the strict legality of a vaccine mandate, it’s equally important to consider the risks, rewards, logistics, fairness, and supplementary measures. It’s also crucial to plan for the difficulties, such as litigation, which are likely to arise. Some of these considerations are built into the “lawful and reasonable” question, but it’s important to adopt a broader perspective.
If you are considering a vaccine mandate, here are 5 things that you should consider in detail that will impact its practical and legal success.
Exemptions are an important and unavoidable part of any vaccination requirement. To legally avoid considering any exemption requests, it would be necessary for an organisation to establish that vaccination is an inherent requirement of every employee’s position and that reasonable adjustments could not obviate that requirement in any case.
Even public health orders issued by state governments for the most at-risk industries allow exceptions for people who cannot be vaccinated due to a medical condition. Workplace-specific requirements imposed by employers exercising their managerial prerogative must be approached in a similar manner.
This begs several questions:
As with most policies, it would be necessary to balance transparency and accuracy against the need to reserve discretion in hard cases without inviting criticism for making “rules on the run”.
Exemption requests would undoubtedly range from clear and compelling to dubious and poorly evidenced. In rare cases, they might even be completely fabricated. The highly publicised decision in Glover v Ozcare [2021] FWC 2989 is a good example of the difficulties employers and employees might face. Ms Glover had a serious allergic reaction to vaccination. Once. Almost sixty years ago. Or so she was told by her parents. Ms Glover refused to consult an immunologist or to otherwise obtain a more current medical opinion. This lack of reliable evidence undermined what may have initially appeared to be a very good reason for refusing to comply with a flu vaccination mandate.
Be prepared to deal with exemption requests that are not straightforward and resist the temptation to prejudge them before all the facts are known. This process may include requesting further information and arranging for independent medical evidence in some cases.
Considering the timeframe of the rollout is crucial and there are a few questions at play:
It’s important to plan the timeframe, bearing these factors in mind, so that workers have adequate notice and non-compliance can be dealt with fairly and decisively. Businesses must also be prepared to adapt to rapidly changing circumstances and make appropriate allowances. For example, New South Wales recently softened vaccination deadlines at the last minute for workers in areas of concern. A grace period was added for those who had booked but not yet attended their first vaccination appointment.
The Commonwealth government recently announced a no-fault vaccination compensation scheme as part of a push for workplaces to establish COVID vaccination hubs.
Consider this:
Unsurprisingly, the prospect of involuntary vaccination is quite daunting for many workers and employee assistance programs may have a role to play in addressing anxiety and stress. It’s important to think laterally about the forms of assistance that might ease the burden on workers to whom the mandate will apply.
Even the most careful and sensitively planned mandate will have vocal opponents and, if enforced, would be likely to attract claims under discrimination, unfair dismissal, or general protections laws.
When anticipating potential litigation and disputes, it’s important to be prepared to answer the following questions:
Lawyers can tell you where your weaknesses are and give you an idea of how much you should expect to spend defending them. What about the workplace conflicts that are likely to arise among groups of workers? It only takes one or two strongly opposed workers to create significant discord. Messaging and support are also necessary to ensure that legitimately exempt employees aren’t stigmatised, victimised or alienated. It is also important to reassure vaccinated workers that unvaccinated workers are not posing an unreasonable level of risk because vaccination is not the only protection in place.
Mandating the vaccine is not a silver bullet. For the reasons explained above (and more), it’s also not particularly easy to do lawfully and successfully. The chances of most businesses achieving total vaccination of their staff are minimal. Even in a case where this is possible, reliance on vaccines must not overshadow the importance of other control measures.
The risks associated with COVID-19 must be assessed and controlled similarly to any other workplace hazard. Employers must, so far as reasonably practicable, eliminate risks to health and safety. If elimination is not reasonably practicable, employers must reduce risks as far as reasonably practicable.
Reliance upon a single control measure is rarely adequate to discharge this duty and we know that vaccines are not 100% effective in preventing transmission or even serious symptoms.
Any vaccine mandate must be integrated as part of a broader plan to manage the risks of COVID. This may include incentivising, rewarding, or otherwise promoting voluntary vaccination (even if it is mandated anyway) and keeping up with other measures such as temperature checks, social distancing, deep cleaning, reducing contact with high-touch surfaces, improving ventilation, working from home (where possible), and so on.
All the issues flagged above require a tailored approach that is appropriate to an organisation’s size and circumstances. Employers should only start down the path of mandating vaccination if they are prepared to jump in with both feet to tackle all the inherent complications. When navigating complex workplace issues, businesses should seek appropriate advice from lawyers, safety professional and other consultants to achieve the best possible results.
