Can you mandate vaccines for employees? Balancing ethics and safety

Vaccinations are voluntary in Australia, and COVID-19 hasn’t changed that.

The difference, however, is that this coronavirus vaccine is also free and supplied by the Federal Government. There are currently three approved vaccine providers in Australia.

Available vaccines in Australia

• AstraZeneca: Available for everyone over 18, although it’s recommended for people over 60 years of age. The multinational bio-pharmaceutical company CSL has manufactured 50 million doses of AstraZeneca in Australia.

• Pfizer: Acquired through Federal Government deals, it's approved and available for everyone over 12 years.

• Moderna: Acquired through Federal Government deals, it's approved and available for everyone over 12 years.

• Novavax: This vaccine is currently under evaluation by the Therapeutic Goods Administration (TGA), the agency that evaluates and approves all healthcare drugs in Australia. It will likely be available towards the end of 2021.

Learn more about these vaccines and their approval processes on the Department of Health website.

But if vaccination is voluntary, why is there so much debate about mandatory vaccinations, or being anti-vaccination?

Given how dangerously transmissible COVID-19 and all its variants have been (in comparison to other coronaviruses we’ve seen in the past such as SARS), governments across the world are seriously considering mandating vaccinations for citizens who have to work in high-risk situations. These include healthcare workers, carers, and essential service employees.

Mandatory vaccination in Australia

The Federal Government has mandated vaccination for residential aged care workers across Australia. This requirement will come into effect from the 17th of September, where every person working in that sector should have had at least one dose of COVID-19 vaccine by that date.

Even though there are usually exemptions for such mandates, in this particular scenario, it’s unlikely that someone will be exempted from vaccination if they want to work in the residential aged care sector. However, the Government still evaluates each request on a case-by-case basis, and may issue an exception if it deems the reason valid and it doesn’t jeopardise public health.

State and territory governments have also mandated vaccinations for certain types of workers.  However, since this is an evolving situation, state governments also frequently update their advice and requirements. Before you think about mandating vaccinations for your employees, have a look at what your state or territory government requires from its residents.

Encouraging employees to get vaccinated

The best way to protect your community and customers from COVID-19 is to actively encourage your employees to get vaccinated. The Federal Government and Therapeutic Goods Administration have outlined many activities you can undertake, along with specific guidelines for each.

You can:

• Offer paid days off for people to get their vaccines

• Provide discounts, vouchers, and rewards for fully vaccinated individuals. Note that your incentive should be only for people who have received both doses of the vaccine. Additionally, any rewards should be in line with other related laws. For example, if you're offering alcohol as an incentive, you should still abide by the liquor laws in your state.

• Use government resources and promotional material to inform and educate your employees about vaccinations. Note: you can't modify any government-created material.

• Offer vaccination drives in the workplace. You can inform your employees about which vaccine you're offering, and any related communication should be for internal educational purposes only. You can't promote or advocate for one type of vaccine over the other.

When promoting and encouraging vaccinations, you can't:

• Require that your employees get a specific type of vaccine. Your message should motivate them to get vaccinated—regardless of what vaccine they get.

• Offer incentives based on conditions. If you provide a benefit or incentive to vaccinated employees, your offer should extend to everyone, regardless of when they get their vaccine. In other words, you can't tell them they have to get vaccinated before a certain date to receive a benefit.

• Provide benefits for getting a first dose of the vaccine. If you offer benefits, it should be only for those who get fully vaccinated.

Should you make vaccines mandatory for your employees?

There are so many variables to consider before you even start to consider mandatory vaccination. The biggest ones, of course, are whether you’d be violating people’s fundamental right to choose and if you’d be discriminating against them.

Here are some questions you should ask yourself to help put things in perspective.

• Are you an essential service provider, where your employees can’t safely socially distance from each other?

• What are the chances and risks of transmission within your workplace if one person is unknowingly infectious?

• How effective has the vaccine been in preventing and/or reducing the spread and the severity of illness for a positive COVID case?

• What are your employees' personal circumstances, especially around getting access to the vaccine?

• Do your employees have a reasonable and/or a legal reason not to be vaccinated?

• What’s the risk for your employees on an individual basis? For example, based on the nature of their work, a certain employee may be less likely to come into contact with others. If you run a grocery store, the level of risk is different to the cashier than to the casual employee you hire to restock your shelves every week. Assess the risk for each job function.

Any vaccination is a sensitive issue. You should always consider each employee and a vaccine's impacts on them on a case-by-case basis. If you’re considering enforcing vaccinations for your employees, we strongly recommend that you get legal advice first to make sure you’re not violating any workers’ rights.

Safe Work Australia has put together a fact sheet that explains vaccines and your duties as a small business. Have a look at it here.

Discussing the value of vaccination and encouraging people to get the jab is an integral part of getting on top of the pandemic. But what if your employees refuse to get vaccinated?

Dealing with employees who refuse to get vaccinated

As we said before, vaccination is voluntary in Australia. The Fair Work Act outlines a range of attributes protected against discrimination. This includes essential attributes such as age, sex, disability, and race, as well as attributes like religious or political opinion.

If your employees can't or won't get vaccinated for medical or other personal reasons, you can't enforce it—unless:

• It's mandated by the state for your industry and business type

• You have an obligation under the work health and safety law

• It's specified in the job contract or other written agreement

• You have a legal and acceptable reason

If you don't have a strong reason, and your employees refuse vaccination, the first step is to open up a channel of communication.

Step 1: Discuss with your employee the reasons they can't or won't get the vaccine.

Step 2: If they have a genuine and valid reason, such as an underlying medical condition where it's inadvisable for them to get vaccinated, consider how they can still continue working without it impacting the mandate. Look at alternative working arrangements for that employee, such as moving a cashier in your grocery store to restocking or administration instead.

Even if alternative working arrangements aren't applicable, under the Fair Work Act, as an employer, you don't have the authority to stand employees down without pay. Exceptions to this will be addressed in their contracts, agreements and awards, and workplace policies and public health orders. Before you can take any action against the employee, you should consider the individual's circumstances. Every situation and every employee's case is different.

If you try to establish a blanket rule that all your staff members should be vaccinated, including pregnant people or those living with certain medical conditions or disabilities, you may be charged with indirect discrimination under the Anti-Discrimination Act.

Parting thoughts

So, should you mandate vaccinations for your employees? Unfortunately, there's no easy answer. First, familiarise yourself with the government rules and  regulations on mandatory vaccination and your duties to your employees and customers. Most businesses don't have to mandate vaccinations for the majority of their employees. However, if you are planning to make it compulsory, we strongly advise that you seek legal counsel to make sure you're not unintentionally violating Fair Work guidelines.