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Workplace law special edition: Occupational health and safety: A shot in the arm

Workplace law special edition: Occupational health and safety: A shot in the arm

By Susanna Ritchie and Mariah Khoury

COVID-19 Health Wellbeing Workplace 

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A COVID-19 vaccine has arrived But the pandemic's twists and turns are not over yet. It's time to start thinking about what the vaccine rollout means for a legal practice’s work health and safety obligations.

Snapshot
  • It is unlikely businesses will need to mandate the vaccine in workplaces.
  • Some clients may require you to be vaccinated to attend their workplace.
  • Employers should not assume they can take disciplinary action if an employee refuses to get vaccinated.

As the rollout of the COVID-19 vaccine commences, many business leaders (including legal practitioners) are turning their minds to what this means for them and their workplace. Everyone wants to get back to normal as quickly as possible, and the vaccine will play an important role in that. This includes getting back to the office. No matter the situation you are in, you'll want to be trumpeting your health and safety credentials. 

Ordinarily, we would expect government to take control and mandate one consistent rule for all employers. However, at the time of writing, the federal government has made it clear it will not be mandating the COVID-19 vaccine for employees. The Victorian government has not made any moves towards mandating the vaccine for Victorian employees either.1

So, without a clear government directive, how far can and should you go in ensuring your people get vaccinated? 

We give you the top three things you need to know before the vaccine arrives in your workplace. For further general information about COVID-19 vaccinations and the workplace, check out the Fair Work Ombudsman’s website.2

1. You don’t need to mandate the vaccine in your workplace unless it is 'reasonably practicable'

We know that under the Occupational Health and Safety Act 2004 (Vic) and equivalent health and safety legislation across Australia (eg, the Work Health and Safety Act 2011 (Cth)), employers are required to ensure the health and safety of the people in their workplace “so far as is reasonably practicable”.3

This means your duty as an employer to introduce control measures directed at eliminating, or at the very least minimising, the risk of exposure to COVID-19 in your workplace continues, notwithstanding the introduction of the COVID-19 vaccine. This includes considering whether or not to introduce a vaccination policy in your workplace.

What this looks like really depends on the industries you work in and who works with you. The key question to ask in determining whether to mandate COVID-19 vaccinations in your workplace is: “is it reasonably practicable?”

Is mandating COVID-19 vaccinations in your workplace 'reasonably practicable'? 

Mandating COVID-19 vaccinations for all employees may seem like a practical measure to help eliminate or minimise the risk of COVID-19 exposure in your workplace. This is especially so if you have staff who are particularly vulnerable to COVID-19 or you work with clients who are vulnerable to COVID-19 or have an elevated risk of being infected. 

However, currently:

  • public health experts such as the Australian Health Protection Principal Committee have not recommended a vaccine be made mandatory in any industry4
  • the vaccine is only being rolled out in stages and as such will not be available to all staff just yet
  • some employees may have genuine medical or other concerns about getting vaccinated. 

Therefore, mandating COVID-19 vaccinations in your workplace may not be reasonably practicable at this stage. It also starts to look less reasonably practicable where there will be a low risk of infection because, for example, your workplace has (or can accommodate) remote working, involves limited client contact and/or is located away from community transmission. 

In light of this, it is important to:

  • undertake regular risk assessments of your specific situation to determine what your COVID-19 vaccination policy will be – look at the people in your team and the people you work with (including assessing the control measures they have in place), regularly review public health and safety advice, and evaluate the control measures in place to stop the spread of COVID-19 in your workplace
  • continue to have open and honest conversations with your staff about what needs to be done to prevent the transmission of COVID-19 in your workplace, including continuing to practice social distancing and good hygiene as well as not attending work when sick.

There is nothing to stop an employer supporting their staff to become vaccinated even if they do not require it. This could include proactively encouraging staff to get the vaccine and making it easy for them to get the injection by, for example, allowing them to get the injection during work hours. 

Employees should also be reminded of their obligation not to endanger others in the workplace by, for example, coming to work when they feel ill or failing to follow your workplace’s hygiene policies and procedures.5

2. Your clients may require the COVID-19 vaccine even if you don’t

There are directions in place which require that specified persons employed in or engaged by certain high-risk workplaces such as hospitals and healthcare providers must be vaccinated or prove immunity to diseases such as influenza, measles, hepatitis B and whooping cough. 

For example, in Victoria, following the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020, the Secretary of the Department of Health and Human Services may direct that a public or denominational hospital, health service establishments and the ambulance service require the people they have “employed or engaged” to be vaccinated against specified diseases. Any action a healthcare employer takes to comply with such a direction will not amount to discrimination based on political and/or religious belief or activity for the purposes of the Equal Opportunity Act 2010.

Given how high-risk healthcare workplaces are, we can expect that governments will be keeping a close eye on healthcare providers and may consider issuing public health orders mandating the COVID-19 vaccine for them soon. We can also expect that governments will be keeping a close eye on other high-risk industries involving people who are particularly vulnerable to COVID-19 or potentially “super spreaders” of the disease – for example, aged care and early childhood education. 

States and territories have individual responsibility for workplace health and safety and, as such, there may not be a one-size-fits-all approach. It is important to understand each of your client’s vaccination policies and procedures before entering their workplace. You may find that you and your team will be required to be vaccinated against COVID-19 in order to be able to enter these workplaces. You may also be asked to assist them in developing their vaccination policies and procedures. 

In any event, it would be worthwhile considering what you will do if you and your team are required to be vaccinated, and introduce your own vaccination policy if you haven’t already got one.

3. Don’t assume that disciplinary action is an option if someone refuses to be vaccinated

In the event you introduce a mandatory COVID-19 vaccination policy in your workplace, remember it must also be lawful and reasonable as a matter of law.

It is generally understood that an employer may only direct employees to do things that are lawful and reasonable. The refusal of an employee to comply with an unlawful or unreasonable direction will not justify the employer taking disciplinary action (this includes termination).

In the absence of something that authorises you to mandate the COVID-19 vaccination, enforcing a blanket rule for vaccination may be dangerous given your competing rights and responsibilities as an employer. It is not like requiring a driver’s licence for an employee who drives as part of their work. There is a legal requirement that all drivers have a licence in order to operate a vehicle on public roads. There is currently no legal requirement that law practice employees get vaccinated.

You need to consider your anti-discrimination obligations as well as your risks of adverse action or unlawful termination before taking any action against current and prospective employees. Individuals or groups of employees or job candidates may have genuine medical or other reasons why they will not get vaccinated that could make it unlawful to require they be vaccinated.

For many lawyers, it is going to be hard to argue it is an inherent requirement of a role to be vaccinated if you do not directly work in a high-risk industry. However, if your work involves a staff member going into the workplace of a client in a high-risk industry (eg, on secondment or interviewing witnesses), your requirement that the employee be vaccinated may be more reasonable than for a staff member who is still working from home and is isolated from the rest of their workplace. 

This means there is going to have to be some nuance and flexibility in all vaccination policies and exemptions considered in some circumstances. 

Other interesting and challenging questions may arise for you as an employer as your team moves back into the office. Staff may refuse to come to the office unless everyone else is vaccinated. Again, it will be important to consider the lawfulness and reasonableness of any directions you may make, and it will depend on individual circumstances.

What do the cases say?

There are no Australian cases which consider the lawfulness and reasonableness of a direction to get a COVID-19 vaccine as it is only just being rolled out. However, there are two recent cases involving vaccination policies in the workplace that we can draw on which both comment on what is lawful and reasonable. 

Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6093

This case involved a childcare centre that implemented a free mandatory flu vaccination program yearly for all employees. Its policy included an exemption for circumstances where employees had sufficient medical evidence to demonstrate that the vaccine would adversely impact their health or safety in some way. 

The applicant was an employee who refused to get vaccinated but provided no medical grounds to support the refusal. On this basis, Goodstart terminated the employee’s employment. The employee made an unfair dismissal claim in the Fair Work Commission. 

This is an important case as recently the dismissal was upheld by the Commission and ruling that in these circumstances, it was a lawful and reasonable direction to require employees to be vaccinated. Deputy President Asbury said at [32]:

“While I do not go so far as to say that the Applicant’s case lacks merit, it is my view that it is at least equally arguable that the Respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason. Prima facie the Respondent’s policy is necessary to ensure that it meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/or medical conditions. It is also equally arguable that the Applicant has unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position, which involves the provision of care to young children and infants”. 

In making these remarks, the Commission clearly considered that the type of work being undertaken as well as the reason for an employee’s objection to getting vaccinated were relevant to the determination of whether a vaccination direction is lawful and reasonable. Interestingly however, the Commission was specific to note that being vaccinated did not consitute an "inherent requirement of the role", but rather mandating the vaccination was a lawful and reasonable direction with regard to the health and safety of others and the nature of the environment in which the employee works.

Glover v Ozcare [2021] FWC 231 

This case involved an aged care and respite organisation. Ozcare placed an employee on indefinite paid leave after the employee’s refusal to get a mandatory flu shot. Interestingly, the employee had refused to be vaccinated over the 10 years of her employment on the basis that she’d been told she had a history of suffering anaphylaxis from a flu vaccine as a child overseas. However, following a direction from the Queensland Chief Health Officer, Ozcare directed the employee to be vaccinated. 

Ozcare raised a jurisdictional objection to the application. In dismissing the jurisdictional objection, Commissioner Hunt confirmed that whether a vaccination direction was lawful and reasonable in the circumstances requires a careful consideration of each circumstance of the person's role and the workplace in which they work, stating at [126] to [127]: 

“In my view, each circumstance of the person’s role is important to consider, and the workplace in which they work in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction. Refusal of such may result in termination of employment, regardless of the employee’s reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector.

“It is not inconceivable that come November 2021, employers of men engaged to play the role of Santa Claus in shopping centres, having photos taken around young children, may be required by their employer to be vaccinated at least against influenza, and if a vaccination for COVID-19 is available, that too. The employer in those scenarios, where they are not mandated to provide social distancing, may decide at their election that vaccinations of their employees are now an inherent requirement of the job. It may be that a court or tribunal is tasked with determining whether the employer’s direction is lawful and reasonable, however in the court of public opinion, it may not be an unreasonable requirement. It may, in fact, be an expectation of a large proportion of the community”.

Where to next?

Hopefully, the COVID-19 vaccine will do everything we need it to and more in the fight against this pandemic. Until then, legal practices will need to keep regularly assessing the situation, adjusting their work health and safety control measures and continuing to have open communication with staff. This may or may not involve requiring staff to have the COVID-19 vaccination. But if it does, we know the law will require a nuanced and careful approach. ■


Susanna Ritchie is managing lawyer at workplace and industrial relations specialist firm, Launch Legal. She leads the strategic direction of the firm, promoting innovation and improved client experiences.

Mariah Khoury is a lawyer at Launch Legal and has a range of experience working on complex and interesting workplace and industrial relations matters.

  1. https://www.afr.com/politics/federal/aged-care-workers-won-t-be-forced-to-get-covid-19-vaccination-20210217-p573dg.
  2. https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/health-and-safety-in-the-workplace-during-coronavirus/covid-19-vaccinations-and-the-workplace.
  3. Occupational Health and Safety Act 2004 (Vic), Part 3.
  4. https://www.safeworkaustralia.gov.au/covid-19-information-workplaces/industry-information/general-industry-information/vaccination.
  5. Occupational Health and Safety Act 2004 (Vic), ss25 and 32.
  6. Austal Ships Pty Ltd (unreported, AIRCFB, Ross VP, Drake DP, Dight C, 13 August 1997).
  7. Morgan J and Hogan A, March 2020, https://www.lexisnexis.com.au/__data/assets/pdf_file/0009/320967/Duty-to-comply-with-lawful-and-reasonable-directions-.pdf.

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