SPC’s recent decision to mandate COVID-19 vaccinations will likely be a legal test for those Employers outside of Aged Care, Health and Child Care. It is a test on several fronts but in particular the practical commercial implications of an Employer dealing with snap lockdowns, quarantining and work from home limitations coupled with legitimate health and safety concerns. Implementing a mandatory vaccination policy not just for employees but also visitors and contractors is a decision that all Employers will most likely need to make (absent of course of any Government legislation or mandated vaccinations). You can read more about the SPC mandated vaccination decision here.
As a result, many in particular in Human Resources and People and Culture teams as well as a number of business owners, CEOs, Executives, Board Members and Advisors have been in contact with our office regarding a number of burning questions the following are some key ones:
- Can I make the vaccine mandatory in the workplace?
- What are the legal ramifications (am I going to get sued) if I do put in place a mandatory vaccine policy?
- Can I insert a clause into contracts with suppliers and contractors requiring workers “on site” be vaccinated?
- What steps do you suggest we take to limit our legal liability?
1. Can I make the vaccine mandatory in the workplace?
The legal answer – potentially! But it will depend on a case by case basis.
The lack of clarity may not be what Employers want to hear however there is good reason for this.
We have had some recent unfair dismissal cases around employees whose employment were terminated because they refused a vaccine. We explored this in the article Will Directing An Employee To Take The Vaccine Be Held Reasonable? 3 Takeaways From The “Goodstart Early Learning” Case and in particular pointed out 3 main points that were considered:
- Inherent requirement of the position
- Reasonable and lawful direction
- Workplace Health and Safety and the Covid-19 Vaccine?
In those unfair dismissal decisions and another regarding temperature health checks the Employer was successful in defending the claims. It would seem at least on the face of it that the Fair Work Commission will consider well drafted policies seriously and will take into account a number of factors:
- The industrial instruments which applied to the employee which included terms requiring:
- Compliance to policies and procedures
- Compliance to reasonable and lawful directions
- Compliance with all health and safety instructions
- The serious and imminent risk to health and safety
- The gravity of the risk to the company taking into specific account the clientele and business of the employer
- The obvious deliberate breach by the employee
- The lack of contrition and even understanding of how the breach could be construed as misconduct (and a high risk)
However these cases also dealt with high risk areas such as health and aged care and were not exactly on point when it comes to the COVID-19 vaccine itself.
What muddies the water further is that Safe Work Australia have released guidance saying:
“It is unlikely that a requirement for workers to be vaccinated will be reasonably practicable.”
This seems to be a little at odds with what seems a view from the Fair Work Commission although stressed that this must be considered on a case by case basis.
For those outside the health, aged care, child care and other employers whom do not have direct (and to some extent indirect dealings) with vulnerable people making the vaccine mandatory in the workplace has a number of legal risks.
Sit down with an Employment Lawyer
To provide clarity to this question an Employer and their Human resources team should sit down with Employment Lawyers such as NB Lawyers – Lawyers for Employers and go through the following questions:
- Is the taking of the vaccine an inherent requirement of the position – that is, can the employee do their job without the vaccine? (lockdowns, quarantines and the commercial ability to utilise work from home flexibility will need to be considered here)
- Is the mandatory vaccination a reasonable and lawful direction? (the lawfulness has a number of considerations however the reasonableness aspect could be considered in light of the roll out of the vaccine, how easy it is to do so, the incentives to do so for example SPC have provided paid leave to undertake the vaccination)
- What are the workplace health and safety obligations?
- What objections will be made to the vaccine and what law needs to be considered in responding to these objections? (reasonable adjustments and discrimination law will feature heavily in dealing with objections on the basis of medical, political or social grounds)
2. What are the legal ramifications (am I going to get sued) if I do put in place a mandatory vaccine policy?
Implementing a mandatory vaccine policy similar to SPC would be considered a direction (whether it is reasonable and lawful is another question). Much like any other policy being rolled out these can be organic and do not need the permission of employees to implement.
However, there are other obligations.
A change of this nature is likely to be considered major and as such the consultation provisions found in modern awards and enterprise bargaining agreements would come into play.
It is claimed by the Unions that SPC has not complied with the consultation provisions under the modern award and is likely an avenue for a dispute.
Types of Actions – potential legal claims
There are likely going to be specific challenges to any mandated policy (save for any Government mandates) by unions and individual employees to policies that are implemented. As an example we foresee the following cases:
- Breaches of the modern award due to lack of consultation;
- Breaches of Enterprise Agreements for failing to adhere to consultation provisions in the correct procedural way;
- Discrimination claims – treating an employee differently due to their political views, parental responsibilities, ethnicity or religion;
- Discrimination claims – on the basis of a medical condition;
- Lack of consideration of medical grounds, information or medical conditions;
- Lack of or failure to consider reasonable adjustments;
- Unfair dismissal claims – for termination of employment due to non-compliance of the policy;
- General Protections claims – on the basis of a number of the factors above which has a direct correlation to the injury of employment either by way of termination, demotion or the like.
The above is just a snapshot of the types of legal claims likely to be made going forward.
Employers need to recognise this risk and can really only do so by sitting down with an Employment Lawyer and go through a number of questions and considerations to:
- Ascertain the legal risk
- Understand the legal risk
- Weigh up the commercial and practical implications of the risk
- Review and consider recommendations
- If an Employer wishes to go forward – accept the risk and liability upon weighing this up
- Draft the policy carefully
- Roll out the policy – including meetings and training sessions as required
Leave obligations will also need to be considered and there are arguments that if the vaccines are mandated they are therefore part of the performance of work and therefore time is payable for this (that is, it is considered paid salary time). SPC countered this potential argument by implementing:
- 6 weeks to book their first vaccination
- Paid vaccination leave
- 2 days of special leave if they are unwell in the recovery of the vaccination
The question of leave or paid time for mandating the vaccine will need to be considered carefully.
Another avenue to consider will be the Workers Compensation obligations if there is an adverse reaction.
Whether the activity is reasonably incidental, substantial contributing factor and in the course of employment are just some of the terms considered in different jurisdictions in Australia to apportion liability.
We strongly recommend speaking with our friends at Workplace Risk Team at Willis Towers Watson who are always willing to help Employers with questions around Workers Compensation coverage.
3. Can I insert a clause into contracts with suppliers and contractors requiring workers “on site” be vaccinated?
A key question that has been asked is about contractors and sub-contractors on site.
If a mandatory vaccination policy is implemented can terms be inserted into contracts to provide services.
The answer is “yes” – although this answer should be tempered that the clauses should be drafted appropriately and properly.
From a practical perspective making vaccinations mandatory in contracts may have discriminatory elements to consider however the contractor still has the option to choose whether they accept the terms or not.
If the terms are also linked with legitimate health and safety concerns and in some respect other legitimate commercial reasons the risk can be minimised.
Indemnity clauses may need to be considered and having a chat with our Commercial Law team at NB Lawyers – lawyers for employers is recommended.
4. What steps do you suggest we take to limit our legal liability?
Following SPC and looking to implement a mandated vaccination policy will have legal risk.
Employers need to sit down and consider the obligations, the relatively untested (or at least directly) waters of mandated vaccines in Australia, the views of regulators such as Safe Work Australia and also the possible moves employee advocates such as Unions will make. This of course on top of other social, political, ethical, medical and religious, personal views and opinions for which debate is quite extensive.
A suggested “game plan” would be:
- A meeting with the HR team, Executive and other key decision makers take place;
- Understand the reason why you would want to implement a policy and if so why?
- What are the potential objections to be considered?
- What are the general health and safety obligations?
- Who will be responsible for drafting the policy and process?
- What documents do you have in place already?
- Sit down with an Employment Lawyer such as NB Lawyers – Lawyers for Employers and go through the above questions but also query the following obligations:
- Modern award
- Enterprise agreement
- Inherent requirement of the position
- Workplace health and safety
- Medical information and grounds
- Reasonable adjustments that could be made
- Opinions and objections
- Commercial contractual obligations with other parties
- The rollout of the vaccine
- Potential for claims – unfair dismissal, breach of contract and general protections.
Legal advice is highly recommended in this area. NB Lawyers – Lawyers for Employers undertake and offer an obligation free consultation – we are happy to help.
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.