As the COVID-19 pandemic edges towards endemic classification and the challenges and employment litigation that arose as a consequence of mandatory vaccination policies draw to a conclusion, the results are providing comfort to those employers who have implemented similar policies. But employers need to change their mindset from COVID-19 policy implementation to reassessment of risk, to decide whether a '"stay or go" approach is most appropriate for their workplace.
So, while most recent decisions show support for the implementation of mandatory COVID-19 vaccination policies, employers must still consider a number of factors when now thinking about extending mandatory vaccination policies.
1. Conduct a risk assessment
Employers should be conducting regular risk assessments and revisiting the risk assessments undertaken at the introduction of mandatory vaccination policies.
Employers have a duty under the Workplace Health and Safety Act 2011 (Cth) to eliminate or, if that is not possible, minimise the risks associated with COVID-19 in the workplace so far as is reasonably practicable.
The aim of a risk assessment (and reassessment) is to determine whether the current control measures in place to reduce the risk of COVID-19 transmission in the workplace are sufficient and appropriate in the circumstances. The assessment should consider this question in the context of the nature of the work, the employees, the clientele and the workplace environment. Where vulnerabilities exist, enhanced control measures might be required.
2. Have there been changes to public health directions in your space?
We have seen State Governments roll back the impact of public health directions; for example, on 4 March 2022 the Queensland Government removed the requirement for masks to be worn in schools and workplaces (subject to a number of exceptions in the residential and aged care sector where masks continue to be mandatory).
This does not mean that businesses need to or should roll back your own control measures, but employers should think about how changes to health directions impact the risk profile of their business.
3. Consultation in relation to change
As part of any risk-reassessment process that employers may be undertaking, employers must remember to consult with their staff regarding any proposed changes to policy that may be introduced to continue to address COVID-19 risks.
The consultation requirement means employers must seek feedback on the proposed changes, genuinely consider it, and report back to staff before reaching any decision.
The perils of not properly engaging in staff consultation were illustrated at the end of last year in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal  FWCB 6059, where the FWC determined BHP employees were not given a reasonable opportunity to express their views, to raise work health and/or safety issues or to contribute to the decision-making process for mandatory vaccines. Further, little information was provided about the risk-assessment undertaken and unions, health and safety representatives were not involved in consultation in any meaningful way. The FWC found that while the vaccine mandate was a lawful direction, it was not reasonable because Mt Arthur had not satisfied its consultation obligations under the WHS Act.
4. Policy enforcement
Employers continue to address workplace absences following the introduction of mandatory vaccination policies and health direction requirements. As many employers are now experiencing, the process of requiring a return to the workplace can be difficult after months of sustained and successful work from home arrangements. Effective policy enforcement requires:
- a consistent application of policy that takes into consideration the reason for absence, including any identified illness/injury;
- the needs of the business (why is a return to the workplace required/beneficial/of assistance to the completion of the role?); and
- an application of the policy that ensures parity of treatment.
Policy exemptions most commonly centre around medical contradictions to the COVID-19 vaccine. Employers must consider each medical exemption request on its merits and in line with their policy requirements. However, recent FWC cases provide some comfort in clarifying that only "recognised medical contraindications" (and valid proof of this) should exempt an individual from the requirement to receive a vaccination.
Edwards v Regal Cream Products Pty Ltd  FWC 257
In Edwards v Regal Cream Products Pty Ltd  FWC 257 the FWC upheld the dismissal of a plant operator who refused a COVID-19 vaccine.
Regal (trading as Bulla Dairy Foods) was subject to a Victorian public health direction requiring its staff to have received their first vaccination by 15 October 2021 (or a booking to do so) and their second vaccination by 26 November.
In refusing the vaccine, Mr Edwards argued that he had major health concerns and provided a medical certificate from a general practitioner in support of those health concerns on 13 October 2021. Bulla rejected the certificate on the basis that it did not evidence a recognised medical contraindication, and the certifying GP had been earlier suspended from practising medicine in Australia. While Bulla provided Mr Edwards with the opportunity to see another independent medical practitioner, he did not do so. Bulla subsequently terminated Mr Edwards' employment on 25 October 2021 on the basis he was legally unable to perform his duties on site which was a requirement of his role.
In dismissing Mr Edwards' unfair dismissal application, the FWC concluded that Bulla had a valid reason for the dismissal and ultimately handled the situation with empathy and care. It determined Bulla had afforded procedural fairness to Mr Edwards, including by giving him ample opportunity to provide a valid medical exemption. The FWC noted that while the dismissal was disappointing to Mr Edwards after 17 years on the job, it was not unfair in the circumstances.
Pending challenges and international decisions
But the pendulum continues to swing. Deni Varnhagen, an Adelaide Crows AFLW player, has made an application to the South Australian Supreme Court challenging the decision of the club to move her to the inactive players list (where she will receive less than 25% of her salary) for refusing to comply with a vaccination mandate. Under AFL rules, if a player has a medical exemption they can avoid the jab, however those without valid medical grounds can be moved to the inactive list. As Ms Varnhagen had no valid medical grounds for refusing to be vaccinated, the club moved her to the inactive players list when she failed to comply with the mandate.
The main argument being pursued by Ms Varnhagen is that the State's vaccination requirements are invalid because they should have been debated and passed by Parliament. In addition, Ms Varnhagen is also claiming that the measures were not "reasonably proportionate" and "restrict the common law right or freedom to bodily integrity and the common law right or freedom to work." The trial is listed to commence on 17 March 2022 and while there is no decision on this case yet, it highlights that some challenges to vaccination mandates continue to progress, and confirms the potential for conflicting decisions.
More recently, in early March 2022 a class action has been filed, led by former Telstra employee Ms Jodi Wruck, in the Federal Court against Telstra over its vaccination mandate requiring Telstra's 8300 workers to receive the COVID-19 vaccine by November 2021. Likely taking inspiration from the BHP case, one of Ms Wruck's arguments is that Telstra did not consult employees or give them an opportunity to discuss the vaccination policy. Conversely, a Telstra spokesperson told The Australian newspaper on 9 March 2022 that Telstra had undertaken "extensive consultation before we introduced our vaccination policy, including extending the period for consultation and making changes to our policy approach based on constructive feedback from our employees and unions." Given the BHP case represents one of the few instances where a court or commission found the direction to mandate was not "lawful and reasonable", the progress of this case will be one we watch closely.
While most Australian States are rejecting challenges to vaccine mandates, just over the pond the situation has taken a turn. The New Zealand High Court on 15 February 2022 determined that an Order mandating vaccines for Police and New Zealand Defence Force staff was unlawful. While the Order was advanced to "ensure continuity of public services", the Court found the requirement did not signal a "reasonable limit on the applicants' rights" and could not be justified in a free and democratic society. Expect this language to be picked up by applicants in pending Australian challenges and letters to employers seeking to roll back the imposition of vaccination policies.
An ever-changing landscape
So while this remains a watch this space, in our view where:
- an employer has a reasonable and lawful mandatory vaccination policy in place; and
- that policy is revisited and assessed as risk profiles change; and
- an employer has afforded an unvaccinated employee procedural fairness and appropriately assessed any medical contraindication to vaccination,
the FWC is likely to view the employer favourably in the event of challenge by a dismissed employee.
That said, as the pandemic progresses, and society approaches herd immunity, whether employer vaccine mandates will continue to be lawful and reasonable will necessarily require ongoing re-consideration and evaluation. If you haven’t already, now might be the time to dust off your 2021 risk assessments and revisit them in light of COVID-19 in 2022.