Vaccinations

Urgent need to clarify employer rights and responsibilities

BY MICHAEL STUTLEY PARTNER, KINGSTON REID

On 6 August, Prime Minister Scott Morrison announced that the law allowed employers to give “reasonable directions” to staff to get vaccinated against COVID-19 following advice he had just received from the Solicitor General about situations where such directions may be considered lawful.

One might be left with the impression that this was a new or novel piece of advice to receive about seven months after the start of the vaccine rollout. Far from it. Many of us who specialise in workplace law have been left scratching our heads for many months about the hesitancy and, quite frankly, in many cases incorrect opinions, which have been voiced and published about the right of employers to insist on vaccination as a requirement of entry to workplaces. Let’s go back to first principles. Employers have a right to give employees lawful and reasonable directions. Employees have an obligation to follow such directions. So, the crux of the issue is whether the direction to be vaccinated is firstly lawful. The lawfulness of the direction requires an employer to consider whether vaccination is a reasonably practicable measure to manage the health and safety of workers from the risk of COVID-19 at work. This requires an analysis of the level of risk. Obfuscation here is not helpful for employers. Yes, it’s fact dependant but there are some clear and straightforward factors that would make vaccination a reasonable safety measure.

COVID-19 is a foreseeable safety risk and vaccination is a reasonable and exceptionally effective control.

No brainers include aged care, health care, disability support, retail, hospitality, manufacturing, call centres, logistics and distribution.

There will be more, of course, but the basic factors will include close contact with each other and the public, contact with vulnerable people, and high degrees of movement and interaction.

Having established that the spread of COVID-19 is a foreseeable safety risk and that vaccination is a reasonable and exceptionally effective control measure the direction will be lawful. The remaining consideration is whether is it is reasonable.

There may be some circumstances where this is not so, but these will be rare. Unreasonableness will more likely arise with the conditions attached to the direction such as the timeframe for compliance considering the current supply and access issues. A perplexing red herring that keeps getting mentioned in the press is the idea that such a mandate would run into issues with anti-discrimination law. Discrimination is only unlawful if it is related to a protected attribute. Vaccine hesitancy or resistance is not a protected attribute. Yes, it is theoretically possible that an employee cannot get vaccinated because of a medical condition and it would be unlawful for an employer to discriminate against that person by imposing a condition which that person could not comply with because of that medical condition. Managing medical restrictions within a workplace is not an uncommon scenario. The employer would need to examine how to accommodate that person. This might involve other control measures (masks, distancing etc) or alternate duties. It could also be possible that a person’s religious beliefs prohibit vaccination. Again, this would be managed in the same way. Both scenarios would be very rare and should not be assuming any significance in the public debate. Of course, just because an employer can mandate vaccines, it doesn’t mean they should mandate vaccines. But they deserve to know the options before determining the best path forward. Deciding whether a business should impose a mandate will involve various considerations such as operational factors, workforce composition, whether it can achieve the same result without compulsion and commercial pressures. These factors have been and will continue to be the subject of attention across all industries. An employer may decide to try other measures to encourage vaccination but fall back to making it mandatory if such measures fail. The business community would be much better served by having clear and positive advice on what’s possible, something that has been

lacking in the commentary to date or the publicly available guidance material. Instead of equivocation, let’s be clear in our messages. Governments at all levels should be repeating the following line: “Employers may be able to require employees to be vaccinated depending on the nature of the business and the relevant workplace. Employers should seek advice on their particular circumstances before imposing any mandatory policy”. This type of communication helps employees, employers and the media Discrimination is only unlawful if it is related to a protected attribute. get it right. Ultimately, that will be in everyone’s interest.

MORE INFORMATION

For further information, please contact: • Alice DeBoos

Managing Partner

alice.deboos@kingstonreid.com

• Michael Stutley

Partner

michael.stutley@kingstonreid.com

• Liam Fraser

Partner

liam.fraser@kingstonreid.com

f AN employer may decide to try other measures to encourage vaccination but fall back to making it mandatory if such measures fail.