Vaccination rollout for COVID-19 – employers will not be immune to challenges

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With the COVID-19 vaccine rollout beginning to occur there has been considerable commentary on the prospect of "no jab, no job".

The Therapeutic Goods Association has currently approved two vaccines, the COVID-19 vaccine COMIRNATY (by Pfizer Australia) in late January 2021 the COVID-19 Vaccine AstraZeneca in mid-February 2021.

As at the time of writing, the Australian Government's Department of Health has outlined that vaccinations will be voluntary and everyone in Australia will be offered a COVID-19 vaccination, over a period of time. Consistent with this, Safe Work Australia's guidance statement also states vaccination would not be mandatory across Australian workplaces.

It is therefore unlikely that employers in most situations will be able to sustain mandatory vaccinations as a condition of employment. However, when (and how) an employer may introduce vaccinations in the workplace, and the risks that arise during this period, will likely continue to be complex and require consideration of a range of circumstances and risks. In particular:

• is there legislation or a health directive requiring employees to be vaccinated?
• what is the business' risk profile, including any hazards employees may be exposed to?
• what safety controls does the business already have?
• the speed of the rollout;
• the potential availability and efficacy of multiple vaccinations; and
• employee sentiment and uncertainty.

As Australia commences its vaccine rollout, this article looks at the landscape as it currently stands and whether or not employers will be able to impose conditions of vaccination, either in employment contracts or as part of lawful and reasonable directions, in the absence of legislation.

What are an employer's obligations?

Under workplace health and safety law, employers are required to ensure, so far as is reasonably practicable, the health and safety of their workers while they are at work, as well as ensuring that the health and safety of other persons is not put at risk from the work carried out by the business.

This means that employers are, so far as is reasonably practicable, required to minimise the risk of employees being exposed to COVID-19 in the workplace.

Not unsurprisingly, the employer's industry and risk exposure it may have to control will be directly proportionate to how  an employer may be able to introduce the vaccine into their workplace. Factors may include the essential nature of international travel, the impact of quarantine requirements, or necessary requirements such as a visa for travel or for international project work. Closer to home sectors such as health and aged care will also have a continued focus on the exposure on the vulnerable and health compromised in our community.

But won't vaccination be required by law?

There may be mandatory vaccination requirements in relation to industries such as quarantine workers, health care workers and aged care workers (though at the time of writing, no legislative requirement has been proposed by the Australian or State Governments).

The Australian Government has proposed a staged rollout, with categories 1a, 1b, 2a, 2b and 3. The categories prioritise people in industries more likely to be exposed to COVID-19 (such as quarantine workers and health care workers) and those with certain vulnerabilities (such as aged care residents). However, the stages of the rollout are about community access, not a business' ability to require its employees be vaccinated.

What are the obstacles to an employer requiring COVID-19 vaccinations?

One of the biggest impediments to an employer-mandated vaccination in the absence of legislation will be the available COVID-19 control measures Australian businesses have already implemented. Since the pandemic began in 2020, Australia has been managing its risk in a range of ways, including control measures for workplace health and safety, lockdowns and quarantine for travellers, social distancing and personal hygiene restrictions and directions.

While there has been many lessons along the way, overall Australia has demonstrated its capacity to implement and manage some of the strictest control measures in the world with the consequent success of limited community transmission.

For employers, keen to see stability return to their businesses economically and to their workplaces, unfortunately the vaccine is not likely to be the "shot in the arm" to get things moving.

As a result, for many who don't have a business requiring essential work overseas, or may work in an area the subject of potential legislative inclusion for mandatory vaccination, the prospect of accessing the COVID-19 vaccination may present itself more as a potential control measure. Not unlike the  flu shot, it may be considered by a reasonable employer to help minimise risks in the workplace, rather than a condition of ongoing employment.

Therefore if an employer was looking to mandate the vaccination in its workforce, it would need to consider both the risk assessment and other control measures it has implemented and put in place, before it could safely also consider whether it had a lawful, but also reasonable basis, to direct an employee to submit to a vaccination as a condition of employment.

What are some employee concerns?

Listening to and understanding employee concerns, and being able to respond to them, is an essential component of an employer's reasonableness in addressing control measures but also implementation steps for a vaccine rollout.

A number of surveys have been conducted leading up to the rollout that provide some useful statistical guidance around the vaccination, not only for how many people are willing to take it (which is a majority of respondents), but also some of the concerns and reasons raised by those who do not want to receive the vaccination or aren’t confident about being vaccinated.

Some of the most frequent concerns raised by those saying they would not be receiving the vaccination included that the vaccine was produced too quickly, and that there are no longer term studies or testing to provide the level of comfort and certainty that people are seeking. The efficacy of the vaccine has also been questioned, with some asking why a viral vaccine is being rushed through where it is likely that COVID-19 will exhibit normal viral-flu mutation patterns, which will out-mutate any vaccination or herd immunity much like the flu.

These concepts then catalyse into what is for some a risk-benefit analysis.

The Australia Government, in relation to the Pfizer vaccine, is also not recommending the COVID-19 vaccine be taken during pregnancy due to not yet having any information from clinical trials on COVID-19 vaccines in pregnant women. As a result, pregnant women or women planning on becoming pregnant in the near future may also have concerns and wish to delay getting vaccinated.

Potential claims by employees (and others)

The community discussion will continue as the access to the vaccination continues to be implemented in Australia. Given some community concerns expressed about the safety of the vaccines, an employer must acknowledge and be a part of that discussion.

To be able to be part of that discussion, it is important that employers stay informed regarding the advice from the Australian Government Department of Health and the Health Department of the State/s they operate in and are able to communicate with their workforces on the risk controls they reasonably propose to implement.

Whether requiring an employee to be vaccinated, or encouraging them to do so, as part of a broader focus on health and safety management, how employers respond, communicate and promote the accessibility of the vaccinate (or attempt to mandate it) may give rise to claims including:

• if the employee is dismissed, unfair dismissal or adverse action claims;
• workers' compensation claims if the employee suffers a psychological injury due to the direction;
• discrimination claims, including if the employee was unable to be vaccinated for reasons such as pre-existing medical condition / other medical exemption from their doctor, pregnancy or religious belief reasons.

With some employers directing employees get the flu vaccine, the issue has come before the Fair Work Commission with the matters of Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083 and Maria Corazon Glover v Ozcare [2021] FWC 231.

In the Arnold matter, Ms Arnold was dismissed from her role as a Group Leader with responsibility for caring for children after not complying with her employer's direction to all employees to receive a flu vaccination by 29 May 2020. Goodstart provided a process for employees to seek an exemption for medical reasons. Ms Arnold objected to receiving the vaccination, not on medical grounds, but on the basis of a range of documents including the Nuremburg Principles, the Australian Constitution and the Universal Declaration of Human Rights. While the Arnold matter involved the Commission considering whether it should extend time for Ms Arnold's unfair dismissal application that was filed out of time, in dismissing the application, Deputy President Asbury made observations in relation to the merits of Ms Arnold's application, saying:

"In 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 the Glover matter, Ms Glover, a care worker, declined a flu vaccination after Ozcare made it mandatory in April 2020 for employees working its aged care facilities or in community care with direct client contact to have a flu vaccination. Ozcare provided a process for employees to seek medical exemption. Ms Glover declined the vaccine stating that she, when a child, had an adverse reaction to the influenza vaccine. However, it was not clear from the documents Ms Glover provided to Ozcare when declining the vaccination whether she had a medical condition that would exempt her from receiving a vaccination.

In May 2020, Ozcare ceased rostering Ms Glover and she utilised her accrued leave, and then some months later filed an unfair dismissal application with the Fair Work Commission. Had she been dismissed? The Commission found that Ms Glover's employment had come to an end as she was on indefinite leave, and Ozcare and Ms Glover were at an impasse over her declining the vaccination. While the substantive case has not been heard, in finding that Ms Glover had been dismissed, Commissioner Hunt also observed that:

"I consider it suitable to note that there is much discussion around the legality of employers requiring employees to be vaccinated against influenza in light of the adverse reaction a vulnerable person might have if they have influenza and then contract COVID-19. It is, of course, a very concerning proposition, and medical evidence to-date suggests that such a combination is highly likely to increase the potential fatality of the individual.

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."

If I can't direct, can I encourage employees to be vaccinated?

Australia has always had a high vaccination rate, and while there are employee questions, based on the surveys undertaken to date about speed and efficacy of vaccinations, it appears this won't be changing.

While mandatory vaccinations may not be reasonable in most circumstances, there is nothing to prevent employers promoting the vaccination, when it becomes available, like the annual flu vaccination, to support the broader community and health benefits of the workplace.

The voluntary promotion of vaccination will continue to be available to all employers to provide increased incentives for vaccination and to create the opportunities to have ongoing dialogue regarding control measures that are reasonable practicable to provide in all places of work.

It is important though to keep in mind that employers are not their employees' doctors and should not be seeking to answer questions specific to an individual employee's health but instead, encouraging employees to speak with their doctor.

Also, depending on the industry and the diversity of a workforce, given the stages of the rollout, it is likely that even with employer encouragement businesses will have a mixture of vaccinated and unvaccinated employees anyway depending on when employees can access the vaccine.

Incentives for vaccination has also been considered overseas. For example, recently, McDonalds announced in the United States an incentive program for employees to encourage them to become vaccinated. McDonalds paid a bonus of 4 hours pay for employees to become vaccinated. Again, should an employer wish to do so, incentivising employees to voluntary submit to a vaccination would also remain available.

Thank you to Jeremy McCall-Horn for his assistance in preparing this article.