Can you mandate staff vaccinations?

Content Summary

Susan Muldowney | November 2021

This article was current at the time of publication.

For many Australians, the daily commute to work has involved a quick trip from one room of the home to another. However, as COVID-19 vaccination levels continue to rise, more workers will be heading back to the office. 

Employers are obliged to protect employee health and safety, but can you insist that employees be vaccinated?

To help answer this question for public practitioners, CPA Australia is consulting Maddocks Lawyers to develop a COVID-19 vaccination policy and other resources. These documents will set out employers’ health and safety obligations and legal requirements when considering a vaccination mandate for employees.

Catherine Dunlop, Partner, Employment, Safety & People at Maddocks, is working with CPA Australia on the resource development. 

She says mandatory vaccinations depend largely on health and safety obligations, especially with ongoing community transmission in states such as Victoria and New South Wales.

Assessing the risks

Work health and safety (WHS) legislation (also known as occupational health and safety [OH&S] in some jurisdictions) requires employers to address risks to employees and to eliminate or reduce them as much as reasonably practicable. 

“When we translate that into a COVID-19 Delta world, the best protections we have are vaccinations in addition to measures like cleaning, wearing a face mask and social distancing,” Dunlop says.

“Vaccination doesn’t prevent transmission and it can’t prevent someone getting sick but, based on the advice and the evidence that’s currently available, it’s the very best measure of protection. If it’s justified on health and safety grounds, employers can issue a lawful and reasonable direction that employees must be vaccinated.

“As a result, employers’ health and safety obligations tend more towards mandatory vaccination in those states than they did previously.” 

Dunlop explains that a risk assessment forms the basis for the lawful and reasonable direction. 

“It doesn’t need to be very complicated but it does need to set out the risk that a worker may get COVID-19 at work because of the way work is done and what the employer is going to do,” she says.

How states are progressing in their vaccination strategy may also play a part in employer decision-making, Dunlop notes. 

“It may be that an employer in Western Australia, for example, says that they don’t think there’s a risk right now, but as soon as borders open they expect there will be. 

“Therefore, they may decide to mandate vaccinations because of the risk when borders open. When employers can show that they’ve assessed the risk and can justify mandatory vaccinations based on that risk, then that position is very likely going to be defensible.”

Dunlop says employers are required to consult with employees before issuing a vaccination mandate. This may include speaking to your health and safety committee, if applicable, or sending an email to all staff about your vaccination plan and asking for their views.

“Once you’ve completed a risk assessment, consulted with employees and considered that consultation, you may decide to issue the direction.”

Consider your options

Employees who may be exempt for medical reasons are required to provide evidence. However, what should you do if other employees refuse to comply with the mandatory vaccine direction or decline to share their vaccination status?

Dunlop says employers can take disciplinary action but recommends caution. 

“There are some complicated issues about discrimination,” she says. “Seek legal advice because it’s a significant thing to terminate someone’s employment on this basis. 

“Many employers are currently looking at mandatory vaccination, but it doesn’t mean that there won’t be challenges and this advice may be open to review in due course. However, it is based on the best advice that we can give at the moment.”

If an employee refuses to get vaccinated or to share their vaccination status, Dunlop recommends helping them to gather more facts.

“I would encourage that you suggest they visit their GP or that you organise for some education to be provided by a medically trained professional.”

Safety at work

While vaccinations can help protect employees from COVID-19, other safety measures are required for office environments.

Physical distancing requirements may differ depending on your state or territory but generally, a 1.5 metre distancing rule applies to all workers in an office. This may require reconfiguring desks as well as putting up signs in your office and creating floor markings to identify the 1.5 metres. 

You can direct employees to wear a face mask if you decide it’s necessary to minimise the risk of exposure to the virus, but you must consult with employees first. Safe Work Australia also recommends that you review the last time your ventilation or air-conditioning system was checked. If you’re not confident that it’s working efficiently, arrange for cleaning or maintenance.

“Employers should still make sure that whatever they’re doing with ventilation, social distancing and cleaning is in addition to vaccination because vaccination is not the golden ticket,” Dunlop warns. 

“Vaccination is one part of the package and that package might in due course also include rapid antigen testing. Employers have health and safety obligations but they are also obliged to consult with employees. It’s best to seek legal advice because the situation is changing.”