What constitutes a ‘reasonable direction’ to get the jab?
Rules on COVID-19 employee vaccinations remain unclear despite newly published guidance from the Fair Work Ombudsman and Safe Work Australia. The lack of clarity has left businesses “deeply concerned and confused” about their next steps in employer-led immunisation drives, according to two employment lawyers.
“Could the messaging be more mixed and the position for employers less clear, especially as the guidance material from these Federal Government agencies is as interesting for what it does not address as much as what it does,” said Michael Stutley and Steven Amendola, partners at specialist workplace law firm Kingston Reid.
Read more: Fair Work Commission gives go ahead for vaccine refusal case
Australia has administered the vaccine to more than 86,000 people and worked with 278 aged-care and residential disability facilities as of 7 March. However, when it comes to vaccinating other vulnerable sectors, the Federal Government is yet to address grey areas.
“What about a whole range of vulnerabilities beyond aged care and health care such as RSLs, food production businesses, and workplaces with close living quarters such as mine sites and supermarkets?” Stutley and Amendola said. “These workplaces would seem to be good candidates for a mandatory COVID-19 vaccination policy. Instead, it seems that these [federal] agencies are only keen to give clear guidance to those workplaces in the most obvious of industries.”
Read more: COVID-19: Should vaccine be mandatory in these sectors?
According to the FWO, under existing workplace laws, the “overwhelming majority” of employers cannot force staff to be inoculated against the coronavirus. However, employers can still encourage staff to be immunised if the employer’s direction to do so is lawful and reasonable.
Meanwhile, the SWA maintains employers won’t be asked to make staff vaccination compulsory, but the agency’s guidance material will be able to help employers determine whether immunisation is a “reasonably practicable” step to prevent virus transmissions in their workplaces.
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Vaccination is only one method in the fight against the pandemic, alongside regular and thorough hand washing, social distancing and the wearing of masks and PPEs. Nevertheless, the lawyers said, it would not be right to dismiss vaccination as a “key component”.
Read more: COVID-19: Can you force employees to take the vaccine?
“If we rely on the underlying assumption that workplaces mandating vaccinations is not necessary because there is sufficient out-of-work incentive to get vaccinated, then we are set up to fail. How many would bother with the flu vaccination if our workplaces did not make them available?” Stutley and Amendola said.
“The battle will be played out in the space between what constitutes a reasonable direction and a reasonable refusal. Policy makers are not necessarily to blame. We all need to remember that the word ‘pandemic’ is not used lightly and that this is a once in a 100-year event.”