With this week’s announcement by Qantas that vaccines would be mandatory for all its workers, businesses around the country are considering whether they can implement the same policy.

Importantly, the Qantas announcement, which followed on from the announcement by food producer SPC a few weeks earlier, came off the back of a survey of all its staff, which endorsed the approach.

Does this mean you can do the same?

In the absence of a government mandate in your industry, or the terms of an enterprise agreement or contract of employment requiring employees to have the COVID-19 vaccination, an employer can only direct an employee to be vaccinated if it is ‘lawful and reasonable’.

What is reasonable will be assessed on a case-by-case basis.

In general, the factors to consider are:

• the nature and requirements of the roles, for example, whether employees work:
• in a client-facing role with contact with members of the public;
• near each other; and
• with vulnerable people who are susceptible to COVID-19;
• the level of risk of being exposed to COVID-19 (or transmitting it to others), including the level of community transmission in the area;
• the effectiveness of vaccines;
• vaccine availability;
• whether an employee has a legitimate reason for not being vaccinated; and
• whether there are other effective control measures for the risk of spreading COVID-19.

When will the direction be lawful and reasonable?

To assist employers to determine whether a direction to be vaccinated will be reasonable, the Fair Work Ombudsman recently updated its guidance materials. The Ombudsman has divided employees into four tiers. An employer’s direction to employees performing Tier 1 work is more likely to be reasonable.

The tiers are:

• Tier 1 work: Where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus, e.g. employees working in hotel quarantine or border control.
• Tier 2 work: Where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus, e.g. employees working in health care or aged care.
• Tier 3 work: Where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment, e.g. stores providing essential goods and services.
• Tier 4 work: Where employees have minimal face-to-face interaction as part of their normal employment duties, e.g. where they are working from home.

Whether a direction is lawful and reasonable will always be specific to the risks and circumstances at the time of the direction, and the circumstances for each employee. Find more information here.

What approach should your business take?

Any business can take the approach of encouraging, rather than directing, workers to get vaccinated. This approach is low risk in terms of claims that may be made against the business. But some businesses may consider that it is necessary to introduce mandatory vaccination for the protection of the health and safety of its staff, visitors, customers and suppliers.

If you are considering a mandatory vaccination policy, you should obtain advice on the introduction of the policy due to the legal risks, such as whether the policy will discriminate against individuals or breach their privacy. Further, if an employee refuses to comply with a direction and an employer decides to take disciplinary action, the employee may bring claims such as unfair dismissal, discrimination or general protection claims.

Will requiring vaccination help you meet your health and safety duties?

Employers have a duty to eliminate, or if that is not reasonably practicable, minimise the risk of exposure to COVID-19 in the workplace. For employers to satisfy their duty, they must implement the highest order control that is reasonably practicable. SafeWork Australia currently has guidance material that suggests that for most businesses it is unlikely that a requirement for workers to be vaccinated will be reasonably practicable. However, advice from regulators is continuously being updated.

Importantly, your business should undertake its own risk assessment to determine if a mandatory policy is needed. In your risk assessment, you should:

• consider the level of risk of exposure to COVID-19 to your staff and others;
• consider available control measures and how they will help manage the risks of COVID-19, including any available vaccines;
• consult with workers and health and safety representatives about COVID-19 and relevant control measures, including the COVID-19 vaccines; and
• determine which control measures are reasonably practicable for you to implement in your workplace.

Requiring, or at least encouraging vaccination, may be one step you can take to respond to the risk of COVID-19. If vaccines are not reasonable for particular staff, ensure there are other control measures in place, such as social distancing, face masks, sanitisation. These measures will be ongoing features even if we do achieve high vaccination rates, because there will always be people who are unable or unwilling to be vaccinated – whether its staff, customer or visitors to the workplace.

Key action points

Before rushing into any decision on a policy for mandatory vaccination, be sure to take the following steps:

• Consult with workers about vaccination and COVID-19 safety measures. Qantas surveyed staff regarding whether they were vaccinated, whether they intended to be vaccinated and whether they would be comfortable working with unvaccinated colleagues. They engaged in that process before implementing their policy.
• Determine if employees are voluntarily wanting to be vaccinated, which may mean you do not need to direct them to be vaccinated.

If you decide to make a policy, when drafting it, ensure the policy:

• distinguishes between workers based on the duties they perform and the level of risk – it may be reasonable to require some, but not all employees to be vaccinated;
• allows flexibility to accommodate persons with a documented medical reason for not being vaccinated. This approach will mitigate discrimination or adverse action risks; and
• allows time for employees to access a vaccine. For example, Qantas’ policy distinguishes between front-line and other workers in its timeline. Their target is for all staff to be vaccinated by March next year, when it is likely supply will exceed demand for vaccines.