With NSW slowly returning to a degree of normalcy following the recent Covid-19 ‘Delta’ outbreak, it is critical that employers do not become complacent about the ongoing risk of viral infection and continue to take all reasonable steps to ensure the health and safety of their employees and other persons in the workplace.
The preponderance of advice from medical and health experts is that the best long-term protection against Covid-19 infection (and the more serious forms of health issues arising from such infection) is to be fully vaccinated with an approved Covid-19 vaccine.
In mid-October 2021, the Supreme Court dismissed several legal challenges over the NSW Government’s Public Health Orders, and affirmed the power of the Health Minister to mandate Covid-19 vaccinations for workers in certain industries under the Public Health Act 2010.
Following the Supreme Court’s decisions, more and more employers have begun taking the initiative of introducing vaccination mandates within their own workplaces. However, such a step is still fraught with legal risk particularly given that non-compliance with such mandates is liable to result in employee dismissals (and the claims that will inevitably follow).
Issues to Consider
When considering whether to introduce vaccination mandates within a workplace, employers should carefully consider:
- the potential risks of infection and spread – having regard to factors such as the nature and location of the workplace, the number of employees in the workplace at any given time, the nature of the work performed by the employees, and the number of potential visitors to the workplace (including unvaccinated visitors);
- whether the vaccination mandate can be implemented by express incorporation into employment agreements or by amending existing workplace policies;
- whether the vaccination mandate may be imposed by way of a ‘reasonable and lawful direction’ issued on work health and safety grounds;
- the obligation to consult with employees about the introduction of the vaccination mandate (as such a mandate is a relevant work health and safety matter);
- any relevant terms contained in an applicable industrial award or agreement; and
- the likely disciplinary consequences for employees who refuse to comply with the vaccination mandate.
What does this mean for Employers?
Several recent court and tribunal decisions have established that vaccination mandates are more likely to be enforceable where they are based on justifiable work health and safety grounds. In such circumstances, an employee’s refusal to comply with a justifiable mandate vaccination gives rise to a ‘valid reason’ to terminate that employee’s employment. Nevertheless, employers must still provide appropriate procedural fairness to an employee before terminating their employment for any such ‘valid reason’ (or else risk being exposed to an unfair dismissal claim).
This means that employers should:
- provide the employee with an opportunity to ‘show cause’ why their employment should not be terminated on account of their refusal to comply with the employer’s reasonable and lawful direction;
- afford the employee a reasonable timeframe to respond to the ‘show cause’ direction (or, alternatively, a reasonable timeframe to obtain an initial Covid-19 vaccination in line with the reasonable and lawful direction); and
- genuinely consider the employee’s response to the ‘show cause’ direction and consider potential alternatives to dismissal (e.g. by the employee working from home and/or taking paid or unpaid leave).
Employers should also ensure that any vaccination mandate or applicable vaccination policy does not inadvertently discriminate against certain employees who may have legitimate reasons as to why they are not vaccinated (such as a pre-existing medical condition). Any purported direction requiring employees to be vaccinated prima facie cannot be ‘reasonable and lawful’ where the direction results in a contravention of state or federal discrimination laws.
Finally, given that Covid-19 vaccines are classified as prescription medications, the Therapeutic Goods Administration imposes certain prohibitions and restrictions on employers and other entities in respect of:
- providing medical advice in respect of any approved Covid-19 vaccines;
- promoting one type of approved Covid-19 vaccine over another; and
- offering prizes or other incentives for employees to receive a Covid-19 vaccine.
Employers should therefore seek legal advice before undertaking any of the above actions.
More Information
Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 02 9635 7966 to speak with one of our employment lawyers if you require any assistance or advice relating to workplace investigations, how to protect your investigation documents under legal professional privilege or in respect of any other workplace matters.
