It comes down to reasonable directions vs reasonable refusals
by Michael Stutley and Steven Amendola, Kingston Reid
Employers are deeply concerned – and confused – about COVID-19 vaccinations in their workplaces following the release of guidance material by the Fair Work Ombudsman (FWO) and Safe Work Australia (SWA).
The FWO said that in the current circumstances the "overwhelming majority" of employers should assume they won't be able to require their employees to be vaccinated against COVID-19 from an employment law perspective. But it also said that employers can direct their employees to be vaccinated if the direction is lawful and reasonable.
SWA said that its guidance material will assist employers to assess whether a COVID -19 vaccine is a "reasonably practicable" control measure to manage the risks of COVID-19 in the workplace, but that most employers will not need to make vaccination mandatory to comply with the model WHS laws.
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.
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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?
These workplaces would seem to be good candidates for a mandatory COVID-19 vaccination policy. Instead, it seems that these agencies are only keen to give clear guidance to those workplaces in the most obvious of industries."
Although vaccinations are just one of a number of COVID-safe measures (such as hand washing, masks, social distancing, QR codes, etc), it is not right to dismiss a key component in the fight against COVID-19 – vaccinations – that have been held out to be the missing link after more than a year of research and development and untold billions of dollars spent globally.
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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?
SWA says there are no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against COVID-19. But what about the common law?
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.
