Vaccinating your Workforce- Mandatory Vaccines and the Roadmap out of Lockdown
The Victorian Government has released their Roadmap for the easing of Covid-19 Restrictions, which has been pinned to the level of vaccination in the community and the stress on our hospital system. Employers may wish to encourage their staff to get vaccinated, to protect the overall health of their team and their customers. Being able to return staff to the office will likely also be linked to their vaccination status, at least in the medium term.
The Victorian Government has also mandated staff be vaccinated in particular industries for them to be able to continue to work, currently in Residential Aged Care and Construction. This is a quickly evolving situation and more industries may be subject to mandatory vaccinations in the future.
Where there is government mandate for a particular industry to have their staff vaccinated employers will be able to enforce vaccinations in line with those health orders.
Outside of the mandated industries an employer may be able to mandate that their workforce become vaccinated, but will need to be careful not to run afoul of Anti-Discrimination provisions of the Fair Work Act.
Any mandate would require a carve-out for Physical/Mental disability, where someone is unable to be vaccinated due to medical reasons. This could not be a reason to dismiss or not employ a person or impose any other adverse reaction on that person.
Any direction to employees needs to be Lawful and Reasonable. Lawful in that it complies with any state or federal laws (mostly the Fair Work Act, and any State mandates per industry). Reasonable is considered on a case by case basis for the type of work.
Fair Work has published a ‘Tier’ system for evaluating whether a direction to be vaccinated is reasonable:
- 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 (for example, 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 (for example, 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 (for example, stores providing essential goods and services).
- Tier 4 work: where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).
The reasonableness needs to be ascertained on a per-employee or per-role basis (ie. frontline customer facing staff vs. office staff with minimal to no contact with the general public).
Fair Work suggests that Tiers 1 & 2 are more likely to be considered reasonable, Tier 3 only in areas of high transmission where a business must continue operating to provide an essential service. Tier 4 is unlikely to be considered reasonable.
Employment agreements can include vaccination mandates, subject to the above considerations.
In terms of privacy concerns, in order to collect proof of vaccination an employer would need to comply with Australian Privacy Principal 3- click here to view.
- They need to only collect the minimum amount of necessary information (in the case of vaccinations, just the Vaccine Certificate or Passport);
- Can only be done with the consent of the Employee, which the employee requires the ability to reasonably decline;
- Need to advise the employee how the information is going to be stored/handled/used;
- Only used or disclosed on a strictly ‘need-to-know’ basis;
- Information must be stored securely.
The information also needs to be reasonably required for the running of the business, or be required to comply with legislation requiring such information.
However, asking for a vaccine certificate to be presented and not keeping a keeping a copy/record of that information would not raise privacy law concerns as it would not be considered collecting the information.
Any mandate to employees should stipulate that it needs to be undertaken with the advice of the employee’s doctor.
This is a dynamic and evolving area of law, and employers should act with caution. It may be enough to encourage your employees to seek a vaccination and provide them with information about eligibility and access to the vaccines.
Contact our Commercial Law team to review any applicable awards or employment agreements for provisions relating to Vaccinations, or to assist you in preparing communication to your staff encouraging them to seek a vaccination.