Q&A: Everything you need to know about mandatory vaccinations

There’s been a whole lot of chatter lately about mandatory vaccines in the workplace, and where the liabilities lie for businesses of all sizes and in all sectors.

But what are the facts? What do business owners really need to consider right now? And is it a good idea to ask staff to get vaccinated?

We’re answering your frequently asked questions here. If we’ve missed anything, drop us a line and we’ll try to get to the bottom of it.

Why is everyone talking about mandatory vaccinations?

Last week, canned fruit business SPC became the first business to make vaccines mandatory for its staff, kicking off a debate as to what employers can ask their workers to do, and what their liabilities could be.

At the same time, the federal government has laid out a new roadmap for recovery, which sets a benchmark of 70% vaccination before we can move away from snap lockdowns every time there’s an outbreak of COVID-19.

For many business owners, it’s these lockdowns — and the uncertainty around them — that is causing long-term damage.

Can I make COVID-19 vaccinations mandatory for my staff?

Editor’s note: In updated guidance issued on Thursday evening, the Fair Work Ombudsman has set out four tiers of workplaces and their likeliness of being able to mandate vaccines for workers. 

The short answer is no, probably not.

According to the Fair Work Ombudsman, “the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated”.

But there are a few exceptions, for example, if the requirement is ‘lawful and reasonable’, or if there’s a public health order in place that requires it.

For example, in New South Wales, there is a public health order in place requiring hotel quarantine, transportation and airport workers to be vaccinated.

The Queensland government has also issued a public health order mandating vaccines for health service employees and workers in aged care facilities.

There are also exceptions in South Australia and Western Australia. You can see the full list of public health orders here.

What does ‘lawful and reasonable’ mean?

The Fair Work Ombudsman notes that an employer can direct employees to be vaccinated if it is ‘lawful and reasonable’.

However, what is and is not lawful and reasonable must be assessed on a case-by-case basis, and this hasn’t been tested in practice.

For a direction to be lawful, it must comply with the award, agreement or contract, without violating any laws, such as discrimination law.

A reasonable vaccination mandate could apply, for example, for employees who have an elevated risk of contracting COVID-19, or who have close contact with people most vulnerable to the virus — such as hotel quarantine or aged care workers.

What if it’s in the contract?

It is possible that a contract for a new worker could contain a clause requiring a COVID-19 vaccine. However, it must refer specifically to coronavirus, and not a similar infection such as the flu.

However, employers are still treading on thin ice here, and must be mindful of anti-discrimination laws. Any contract term that goes against anti-discrimination compliance laws will not be enforceable.

The Fair Work advice is to seek legal advice on this.

Aren’t vaccinations required for construction workers in Sydney?

In New South Wales, Premier Gladys Berejiklian lifted some restrictions on the construction industry in Sydney.

However employees living in local government areas badly affected by COVID-19 must be vaccinated, and return a negative test, in order to be allowed to work.

In this instance, it appears that while unvaccinated workers will not be able to return to work, their employers cannot mandate the vaccine to get them back on site.

What are the benefits of mandatory vaccinations?

Mandating vaccines could be a way to get to that magic 70% figure more quickly. It also reduces the risk of further COVID-19 outbreaks within businesses and among the general population.

That’s particularly true for customer-facing businesses, such as hospitality venues.

What are the risks to my business?

As it stands, there are a lot of legal risks to consider, if you plan on asking staff to get vaccinated. But this is unchartered territory, so it’s unclear exactly how those legal issues will play out.

Speaking to SmartCompany about SPC’s decision to make vaccines mandatory, employment lawyer Andrew Jewell said that if an employee refuses the jab and is dismissed as a result, we can expect to see a test case play out in the courts.

“It pushes what’s presently the accepted boundaries,” Jewell said.

“The central issue for the Fair Work Commission would be, ‘is the direction lawful and reasonable?’”

One thing we can be sure of, however, is that any legal action comes with considerable cost, regardless of the outcome.

Even so, if a business owner does require vaccinations among staff, they should also cover the employee’s travel costs, and allow them to attend their appointment during work hours without loss of pay.

The Fair Work Ombudsman also recommends implementing support, such as paid leave or the option to work from home for anyone who experiences adverse side effects.

What happens if something goes wrong?

This is currently the million-dollar question. While the risks associated with the AstraZeneca vaccine are very small, there is still hesitancy, particularly among younger people who were initially warned away from that particular jab.

Those in the hospitality business, for example, are calling to be allowed to require staff to be vaccinated, and for protection from legal action if the employee suffers adverse effects.

Others argue this would leave the employees unprotected.

While Prime Minister Scott Morrison put the onus squarely on businesses, inviting them to seek their own legal advice, Business Council of Australia chief Jennifer Westacott argued that businesses have enough on their plates already.

To complicate things further, there is legislation being tabled in New South Wales that would make employers liable for any injuries or adverse effects caused by the vaccine, if it was mandatory in order for them to return to work.

“It squarely puts the risk on the employer for mandating anything,” Fay Calderone, partner at law firm Hall & Wilcox, told SmartCompany.

What’s the alternative?

The alternative, and something businesses seem to be leaning towards, is to offer rewards or incentives for employees who get vaccinated, without making it mandatory.

It comes down to a question of carrot or stick, Calderone said.

If you mandate vaccination, you have to consider what you will do if an employee refuses. That way lies risk and liability, she says.

On the other hand, if you have a policy that provides incentives and encouragement, plus a clear communication strategy and policies for what happens if an employee becomes unwell, the business “can’t be criticised or indeed liable for giving incentive”, she adds.

“For a small business, my personal view is that, until we have more well-developed guidance, they’re better off having clear comms and policies encouraging it rather than mandating it.”