NSW mandates COVID-19 vaccine for certain workers: What does it mean for employers?

NSW premier Gladys Berejiklian has suggested some industries will reopen to vaccinated customers and employees from next month, despite the state recording over 1,000 new cases of COVID-19 yesterday.

Last week, Berejiklian announced the COVID-19 vaccine will be compulsory for all teaching staff from mid-November in a bid to allow schools to reopen safely. Healthcare and disability workers, residential agedcare staff and workers involved with hotel quarantine are already required to have the jab under NSW law.

But aside from the public health order, hairdressers, fitness studios and alfresco dining are some of the freedoms that have been mentioned once the state reaches 70% vaccination rate. However, the Premier has stressed that at least initially, both customers and employees will need to be fully vaccinated to enjoy eased restrictions.

Read more: Workplace COVID-19 vaccinations could begin in September

But without a public health order requiring vaccination in those industries, where does it leave employers? Is there a difference between an “incentive”, as flagged by the Premier, and a mandate?

HRD spoke to Trent Hancock, principal at Jewell Hancock Employment Lawyers, who said the incentive as suggested by the Premier – that is for an employee to be given work only if they are vaccinated - is akin to a mandate.

“There are two overarching questions when it comes to those types of directions or incentives,” he said. “The first of which is going to be whether vaccination is an inherent requirement of a particular position. The second is going to be whether the direction to be vaccinated is a lawful and reasonable one. There has obviously been a lot of discussion recently around that second question as to whether or not a direction to be vaccinated is a lawful and reasonable one.”

The major concern for employers is a policy of requiring workers to be vaccinated may indirectly discriminate against those who cannot be vaccinated, for example because of a health condition or a disability, Hancock said. If businesses employ a blanket policy without considering how to deal with those types of exemptions, they could end up breaching discrimination law.

“It will require an assessment on a case-by-case basis as to whether a particular policy, for example one that provides incentives to employees to be vaccinated to receive work, will have a disproportionate impact on those in the workplace who can't be vaccinated,” he said.

Recent single member decisions by the Fair Work Commission offer some insight into how the court has dealt with discrimination and unfair dismissal claims related to mandatory vaccine policies. While those rulings related to the flu vaccine – rather than COVID-19 – they do point to the court’s overarching principle when members are considering whether a direction was lawful and reasonable.

Read more: Tribunal finds employee's 10-year depression not 'permanent impairment'

Employers will also have to consider whether being vaccinated is inherent to the role – and the answer to that question will depend on the wider context and how much of a risk COVID-19 poses to the employee. In the context of the current outbreak, it may be reasonable to argue that for any customer facing role, like a hairdresser or a barman, a vaccination is a necessity to keep both themselves and their customers safe. But as Hancock pointed out, employers must consider these questions on a case-by-case basis, thinking about the risk of transmission associated with the role, the industry, the specific location and the number of cases in the community.

Using the example of hairdressers, Hancock said they are likely to be susceptible to transmission giving the current outbreak, the face-to-face nature of the job and the close proximity between customers and other colleagues.

“The question does become can an employer guarantee a reasonable and safe work environment for those employees if they aren’t vaccinated?” he said.

These are the types of issues employers across all sectors will have to face over the coming months if employees are set to return. Industry leaders have been calling out for strong federal leadership on the issue, but aside from the residential aged care sector, the decisions over mandatory vaccination polices have been left to employers.