Can companies enforce COVID-19 vaccination policies?

Whether we’re talking about uptake rates, the pros and cons of Pfizer vs AstraZeneca, or just looking forward to what life will look like when we’re allowed to go back to “normal,” everyone is talking about COVID-19 vaccinations right now. 

But there’s one key question dominating conversations in business circles right now: can companies introduce mandatory COVID-19 vaccination policies for employees?

It’s understandable that this is a concern area for employers. A high vaccination rate among the workforce will improve safety measures for clients and co-workers, significantly decrease the potential for workplace transmission, and reduce the risk of large-scale business shutdowns. But can employers make getting the vaccination a condition of employment?

There are a number of examples internationally where employers are going down this path. In May, major US airline Delta Air Lines introduced a mandate requiring all new employees to be vaccinated. A UK report released in April showed that 50% of workers expected their employers to demand vaccination passports from all workers to ensure staff safety. Closer to home, Western Australia recently announced that all health care workers would be required to be vaccinated against COVID-19.

Is it legal for Australian companies to implement a mandatory vaccinations policy?

Mandatory vaccination policies in certain Australian sectors are not a new concept. Those working with vulnerable populations such as healthcare and childcare workers have long been required to receive annual flu vaccinations. However, recent lawsuits, such as that of Barber v Goodstart Early Learning [2021], have raised awareness around the issues of mandatory vaccinations.

In August 2020, a Goodstart Early Learning employee had her employment terminated after refusing to get the influenza vaccination, in direct contradiction of the company’s mandatory vaccination policy introduced earlier in the year.  The employee lodged an unfair dismissal complaint on the grounds that she had a valid medical exemption.

However, the Fair Work Commission (FWC) ultimately found in favour of Goodstart on a number of grounds. Key among those was the finding that the employee did not provide a legitimate medical reason to support her claim for exemption from the vaccination, and that it was reasonable for a company in a highly regulated sector – such as childcare – to create statutory obligations around care and safety beyond that of a normal employer.

In lay terms? FWC said it was reasonable for the early learning company to enforce the mandatory vaccination policy for their workers in the interests of the safety of the children in their care.  

What does this mean for my company?

So, based on the precedent set by the Goodstart Early Learning case, you can go and implement a mandatory COVID-19 vaccination policy in your company, right?

It’s not that simple.

Employers should be careful about using this case precedent as gospel for instituting their own workplace vaccination policies. According to Gabrielle Joffe, Associate at Moray & Agnew Lawyers, until there is a ruling to the contrary, there are very limited circumstances in which Australian companies can implement a mandatory COVID-19 vaccination policy and any decisions taken by the court in this regard will be very fact-dependant.

“There are limited circumstances where an employer may require their employees to be vaccinated. Whether an employer can require their employees to be vaccinated against coronavirus is highly fact dependent, taking account of the workplace and each employee’s circumstances,” says Gabrielle.

“Relevant factors an employer should consider include whether employees have a legitimate reason for not being vaccinated (for example, a medical reason), and how protections for employees under anti-discrimination laws may apply.”

The Goodstart Early Learning case was only one example of precedent, and while there have been others cases in which the FWC has similarly found in favour of the employers (such as an incident with the Sapphire Coast Community Aged Care involving an aged care receptionist and Ozcare involving an at-home care worker), each of those cases have involved organisations that work with vulnerable populations, such as children, the elderly, or those in need of at-home care.  

“In the example of the Goodstart case, a key finding was that employers have an obligation to ensure a healthy and safe workplace and to act to prevent the transmission of infectious disease.”

Gabrielle stresses that this is still a grey area in Australia, and any future rulings by the courts will be very fact dependant in their approach.

“This is very much a ‘watch-this-space” situation. Ultimately, it depends on what you’re asking people to do, what you’re exposing them to, and whether you’re being unreasonable in either of these scenarios.”

Whatever you’re doing, Gabrielle advises caution when issuing blanket rules or policies in your workforce, lest you risk running into issues around discrimination.

Incentivising vaccinations

As with any campaign to influence behaviour change, mandates and obligations are not the only way to encourage employees to participate.

The Therapeutic Goods Association (TGA) recently advised that employers are legally allowed to offer incentives to any employees who have been fully vaccinated under the Government’s national COVID-19 vaccination program. 

This gives employers the option to prioritise the carrot over the stick and look to incentivise vaccinated employees, rather than punish unvaccinated employees.

Cover image: Shutterstock