COVID-19 Employment & Workplace Rights
What are my rights as an employer?
As we encroach a 90% vaccination rate, it might seem superfluous to consider the risks in your workplace, however, with a 1 in 10 chance of an employee not being vaccinated, this poses great risk to your workplace, and merits strong consideration.
Executive Summary
Issues that are considered:
- Prominent and longstanding statutory and case law provisions outlining employer obligations for employee safety.
- Whether or not vaccines can be mandated within the workplace and the grey area of current legislation surrounding the topic.
- Vaccine mandates breaching existing Anti-Discrimination laws.
- Vaccines themselves are a very contentious subject for many, with some staff adamantly opposed to the vaccine.
How can mandatory vaccines be legal?
Vaccine mandates must be reasonable and lawful. The report from Arrow White illustrates and explores some key factors for the tests of reasonableness and lawfulness including:
- Does your mandate offer medical exemptions (or possibly even religious exemptions)? [1]
- Does your mandate consider other forms of exemptions such as nature of work?
- Does your employment contract allow for vaccine mandates?
- Does a current Queensland health directive cover your workplace mandating vaccines?
- Does your mandate offer a grace period?
- Does your workplace qualify for a significant level of the Fair Work Tier System?
The report finds that:
- Much of the information available for case law is in its infancy stages.
- The issues are prospective and so are not able to be adequately conceptualized.
- The landscape is rapidly evolving.
- Risk mitigation is the first step in protecting your workplace from both the disease itself, and its nexus events.
Report
As each State varies in their day-to-day operations, as well as the concerns that their State government focuses on, we have largely considered Queensland.
Since the COVID-19 crisis began, many Australians have grown weary of the restraints, pitfalls and subsequent damage to businesses and livelihoods that has without notice pervaded their lives. Therefore, it should come as no surprise that employers are wanting to distance themselves from the pandemic and associated issues it has caused as much as possible. From a legal point of view, it is significantly difficult to navigate throughout this period.
Is directing my staff to get vaccinated (Mandatory Vaccinations) lawful?
As an employer you have an obligation to provide your employees with a safe working environment, which is both underpinned and enforceable by statutory legislation and common law. Staff safety is paramount, so deductively a vaccine that has been found to reduce risk of transmission and illness should be blanketly applied across all workplaces. [2] Requesting all employees to uptake the vaccine to prevent liability should that same employee or other employees’ contract, spread, and or develop complications from the illness, however, is not necessarily legal. By alleviating one WHS issue, the pendulum shifts to put your workplace at risk of legal action under Anti-Discrimination laws.
In order to be legal, the measures you take to ensure this must be reasonable and legal. Determining what constitutes as something both lawful and reasonable needs to be reviewed with the facts at hand, as each individual case may be different.
Exemptions
Industries where staff work with vulnerable persons, or hospitality industries with very high standards of hygiene and food safety requirements are compelled to get vaccinated by the Queensland Government as legislative condition of their employment. [4] It might be that one of your staff members might be legally obligated to get vaccinated due to the nature or the course of their work, however if another staff member in the same business carries on a completely different role, say for example working from home, they may be exempt from these requirements. A factor in this may be because their duties may not require them to interact with vulnerable persons or carry out work that puts the public at risk, should the employee not be vaccinated.
Anti-Discrimination Exemptions
Under Anti-Discrimination laws your employees may be medically, or in very fringe circumstances religiously exempt from getting a vaccine.
Legitimate medical exemptions are a satisfactory qualification for a medical exemption according to the Queensland Human Rights Commission, and Services Australia and can be evidenced. Not all medical exemptions are granted, but may later be overturned or reconsidered, so a tactful approach towards employees and the sensitive nature of these issues is required.
Religious exemptions are very unlikely to be granted according to the Queensland Human Rights Commission, and so will likely not pose an issue for an employer.If employers should be aware of the existence of bona fide exemptions and ensure they are not breaking the law with their requests.
Contracts and Vaccine Clauses
A review of your employees’ contracts, the definition of their work and whether it falls under the umbrella of current health directions could be the key to determining the lawfulness of your request. [6] If your employment contract operates within the legal parameters of the Fair Work Act, and stipulates a vaccine requirement (commonly referred to as a “Vaccination Clause”) that is also reasonable, then you may be within your rights to request any new employees who have signed same to be vaccinated. It is imperative to have someone with sufficient legal understanding to review the employment contract to ensure that a breach of law has not occurred. For existing employees, a variation of the existing employment contract may be possible if one of the following requirements are met:
- Mandated by the Queensland State government in a health directive or
- It is not a unilateral variation (it must be signed by employer and employee)
Is directing my staff to get vaccinated (Mandatory Vaccinations) reasonable?
The Fair Work Tier System
The Fair Work Commission has created a tier system whereby the reasonableness of the vaccination request is broken down by the employees’ individual roles and exposure likelihood. Thus meaning, the less likely the staff member, vulnerable persons or large amount of the general public will contract COVID-19 from the employee being unvaccinated, the lower the tier will be (the highest tier, equating to the lowest risk being Tier 4). Notwithstanding the apparent support by Fair Work of requesting staff vaccinations, if they are a Tier 1 candidate, the tier system merely supports the argument of reasonableness and is not determinant of the lawfulness of your workplace urging staff to get vaccinated.
Grace Period
Another consideration for reasonableness is the urgency in which you request employees to become vaccinated. If this is the first instance of your request and voicing your plans for the workplace, where not governed by law, it might not be reasonable to request immediate vaccination of your staff. Grace periods have been announced for many government bodies and institutions. [9]
The implementation of a grace period whereby staff are able to book the appointments, take time off work, or organize around their personal lives should be the course of action considered.
Prudence as an employer is imperative, both in a commercial sense and from a risk perspective. After many forced lockdowns, office closures, and risk aversion, leading to some offices being deserted, it may not be the most commercial option for a business to force immediate staff vaccinations and risk losing integral members of their workforce. While the grace period is underway steps need to be taken to mitigate risk, while simultaneously keeping the employees happy and ultimately, employed by your business. Measures including leave-without-pay, WFH options might be sufficient to continue business during the grace period until full-staff vaccinations. [10]
Fair Work Commission Apparent Position
The Fair Work Commission has recently on several occasions supported the argument that a flu vaccination mandate by a private employer to all employees is not unreasonable or unlawful. [11] One workplace allowed for the exemption of being vaccinated should there be any medical reason preventing vaccination. This complies with anti-discrimination policies because a key discriminatory factor would be requiring an employee to do something that they cannot comply with due to medical reasons (Pregnancy or Disability/Impairment). A pertinent feature of the facts at hand being that both incidences were for workplaces dealing with vulnerable people (aged care facility and a childcare centre respectively) which likely persuaded the Fair Work Commission to take on a more supportive position in the decisions.
On the face of it, current case law does not appear to cover other industries that are not “high risk”, and therefore there is insufficient case law to eliminate an employer’s concern from a liability perspective due to this unrefined area of law that could develop either way. Although, the current cases do seem to favour the employer as they have a requirement to keep their employees safe.
Conclusion
Current case law remains in its infancy with respect to COVID-19/Influenza workplace vaccinations, and legislation primarily only encompasses high-risk workplace settings. It is a prospective issue that no employer can likely have ultimate protection against the fallout of COVID-19, however, a prudent employer should consider the issues that may arise, and successfully mitigate them with the assistance of an expert legal team.
We note that in Queensland the Chief Health Officer’s Public Health Directions are rapidly and constantly updating in response to the pandemic. Further to this, the current COVID-19 Emergency Response Act 2020 (Qld) is not stipulated to be repealed until 30 April 2022, unless other legislation repeals it in the interim, adding to the concept that the legislative climate is and is assumed to continue to be unstable.
We believe these responses shed some light through the murk of the COVID-19 situation, especially in employment law. Straying too close to one end of the spectrum risks discrimination, however, conversely the opposite end potentially risks the health and safety of other employees. As an employer, the next few years will prove to be tremendously challenging with unanticipated events continuously arising. A great legal team and meticulous efforts to keep your employees safe without jeopardising their rights will be the first line of defense to ensure the metaphorical decay of the COVID-19 disease does not corrode your workplace.
IMPORTANT: The content of this article current at the time of publication, however we note due to the rapidly changing COVID-19 and legislative landscape it could be out-of-date at the time of reading.
This is not advice. Readers should not act solely on the basis of the material contained in this newsletter. Items herein are general comments only and do not constitute or convey advice per se. Also, changes in legislation may occur quickly. We, therefore, recommend that our formal advice is sought before acting in any of the areas covered in any newsletter.
This webpage is made available by Arrow White for educational purposes only as well as to give you general information and a general understanding of the law, but not to provide specific legal, tax, financial or investment advice. By using this webpage, you understand that there is no lawyer-client relationship between you and Arrow White. The webpage should not be used as a substitute for competent professional advice from a suitably qualified professional. Nothing on this webpage should be construed as an offer to sell, a solicitation of an offer to buy, or a recommendation for any asset by Arrow White or any third party. You alone are solely responsible for determining whether any investment, asset or strategy or any other product or service, is appropriate or suitable for you based on your investment objectives and personal and financial situation. You should consult a suitably qualified professional regarding your specific legal, tax, financial or investment situation.
[1] https://www.qhrc.qld.gov.au/your-rights/covid-19-and-human-rights/vaccination-and-your-rights
[2] https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/about-rollout#benefits-of-vaccination
[3] https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations#vaccination-requirement-anti-discrimination-laws
[4] https://www.health.qld.gov.au/system-governance/legislation/cho-public-health-directions-under-expanded-public-health-act-powers/workers-in-a-high-risk-setting-direction; https://www.health.qld.gov.au/system-governance/legislation/cho-public-health-directions-under-expanded-public-health-act-powers/public-health-and-social-measures-linked-to-vaccination-status-direction
[5] https://www.qhrc.qld.gov.au/your-rights/covid-19-and-human-rights/vaccination-and-your-rights
[6] https://www.health.qld.gov.au/system-governance/legislation/cho-public-health-directions-under-expanded-public-health-act-powers
[7] https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations#requiring-employees-to-be-vaccinated
[9] https://www.pm.gov.au/media/national-cabinet-statement
[10] https://www.lawyersweekly.com.au/biglaw/33350-how-to-manage-the-un-vaxxed-workforce?utm_source=LawyersWeekly&utm_campaign=05_01_22&utm_medium=email&utm_content=1&utm_emailID=081c7f340b7fe11f0ac723d98f08a7a6a4e2e19590d4649b8c155a68cbf29fbc; https://www.maddocks.com.au/insights/year-in-review-employment-safety-people
[11] https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc231.htm; https://www.fwc.gov.au/documents/decisionssigned/html/pdf/2021fwc2156.pdf
[12] https://www.qhrc.qld.gov.au/your-rights/discrimination-law/easy-read-guide-to-the-anti-discrimination-act; https://humanrights.gov.au/about/covid19-and-human-rights/covid-19-vaccinations-and-federal-discrimination-law
Disclaimer: This publication is intended for general and informative use only and is not to be relied upon as professional financial or legal advice.
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