Covid-19 Vaccine Mandate – Current State of Play

Public health and social measures are being implemented in light of the Queensland boarders reopening on 13 December 2021, but what does this mean for your business? This article aims to shed light on this emerging issue by providing information regarding:

1. The restrictions being implemented;
2. Recent judicial directions relating to the implementation of mandatory COVID-19 vaccination policies within the workplace; and
3. An outline of when a business should/may implement a mandatory COVID-19 vaccination policy, and how this policy should be implemented to avoid any potential legal ramifications.

Proposed restrictions upon unvaccinated individuals

 From 17 December 2021, unvaccinated people in Queensland will be unable to:

• visit vulnerable settings, including hospitals, residential aged care, disability accommodation services, and prisons. This does not apply to residents and patients of these facilities, and there will be some exceptions for medical treatment, end-of-life visits, childbirth, and emergency situations;
• attend hospitality venues such as hotels, pubs, clubs, taverns, bars, restaurants or cafes;
• attend indoor entertainment venues such as nightclubs, live music venues, karaoke bars, concerts, theatres or cinemas;
• attend outdoor entertainment activities such as sporting stadiums, theme parks or tourism experience like reef excursions;
• attend festivals (either indoor or outdoor) such as musical festivals, folk festivals or arts festivals; or
• attend Queensland Government owned galleries, museums or libraries.

If anyone attending a wedding is unvaccinated, it is restricted to a maximum of 20 people. Funerals will not be limited to only vaccinated people. However, funerals will still be required to comply with occupant density limits and caps on attendees to minimise the risk of transmission.

The Government states these restrictions target non-essential leisure activities which are not essential for people to meet their basic needs but present a considerable risk to contributing to an outbreak in our community when our borders reopen. Accordingly, if your business relates to any of these restrictions, you will need to consider how you can ensure all relevant employees and customers meet the specified requirements.

Judicial consideration of employer mandated COVID-19 vaccination policy

With the increasing number of employers choosing to mandate COVID-19 vaccination policies within their workplace, judicial discussion has commenced regarding potential issues with such mandates. Briefly, these discussions have demonstrated:

1. Mandating vaccination does not violate an employee’s human right to bodily integrity as the mandate does not allow for involuntary vaccination (Natasha Henry v Brad Hazzard[1]).
2. The right to life has been upheld as an absolute, non-derogable right, enforceable by the imposition of both negative and positive duties requiring action against threats to life, such as a highly infectious disease (including mandating vaccination).
3. Implementing a COVID-19 vaccination policy may represent an employer’s reasonable and lawful direction, an employee’s refusal of which may be grounds for disciplinary action up to and including dismissal (Ms B v Goodstart Early Learning Centre[2]).
4. An employee’s objection to the vaccination on the grounds of religious beliefs does not make the direction unreasonable (Larter Case[3]).
5. A COVID-19 vaccination policy is likely to represent a lawful and reasonable direction where it is implemented as a result of current health orders (QNurses First Inc. v Monash Health[4]).
6. Implementing a COVID-19 vaccination policy is likely to represent a lawful and reasonable direction when the subjected employee is in a client facing role and/or required to interact with individuals classed as ‘vulnerable’ (i.e. elderly, unwell, etc) (Ms Maria Corazon Glover v Ozcare[5]).
7. An employee who objects to an employer’s mandatory vaccination policy on the grounds of a medical exception, without adequate medical evidence justifying the objection, can be disciplined for failing to follow a lawful and reasonable direction (Jennifer Kimber v Sapphire Coast Community Aged Care Ltd[6]).
8. Mandatory vaccination policy does not amount to assault or battery on the bases that the vaccination is not administered without the employee’s consent (Bou-Jamie Barber v Goodstart Early Learning[7]).
9. Failing to adequately consult employees prior to implementing a mandatory COVID-19 vaccination policy may result in the direction being unreasonable (Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arther Coal[8]).

An employer who issues a mandate requiring employee’s to be COVID-19 vaccinated which is not lawful or reasonable could be exposed to industrial disputes, unfair dismissal claims, discrimination claims and/or breach of the general protections provisions contained in the Fair Work Act 2009 (Cth) (particularly in circumstances where the employer seeks to discipline or terminate an employee for non-compliance with the mandate).

Privacy – Accessing health information for vaccination confirmation

Following the implementation of a lawful and reasonable vaccination policy, an employer can ask the relevant employee to provide evidence of their vaccination. The employee’s consent is required to obtain and keep this medical record.

If the employee (current or prospective) refuses to provide their consent, although they cannot be forced to comply, failing to follow a lawful and reasonable direction, as discussed above, can be grounds for dismissal.

Although reaching settlement prior to hearing, the recent matter of Australian Licenced Aircraft Engineers Association v Virgin Australia Airlines Pty & Ors[9] raised issue with an employer obtaining and retaining proof of COVID-19 vaccinations which contains individual healthcare identifiers (including COVID-19 digital certificated and immunisation history statements). This action arose on the bases that the employer vaccination privacy statement, which says it will hold vaccination information and “may also” use it to “manage our relationship with you, including payroll, rostering, disciplinary action and any workers compensation claims“, was an alleged breach of the Privacy Act 1988 (Cth). The Employer agreed to an undertaking that they would delete all relevant records. Although not definitely decided by the Court, this matter indicates the importance of employee privacy in terms of medical (including vaccination) documents.

Concluding thoughts

With the rising issue of mandatory COVID-19 vaccinations, it is evident that employers face the complexity of managing competing demands; the public health (as obligated via government health orders/restrictions) and the individual autonomy and/or health considerations of their individual employees. When these demands conflict, which takes precedent? How should an employer go about ensuring they are meeting their public health obligations, while also ensuring they preserve the rights of the employee under relevant industrial law (and consequently mitigating their liability for action under any relevant industrial instrument)? The decisions discussed above reveal that employers must consider the following:

• Is there a public health directive requiring their staff to be vaccinated?
• If no, does the individual circumstances of the role necessitate vaccination?
• If, for either of the above reasons, a mandatory vaccination policy needs to be implemented, what is the required consultation process with affected staff?
• What is the best way to verify/ensure all staff are meeting their vaccination requirements and comply with privacy laws?

Authors:    Emma Marshal  (Solicitor) &  Nigel Saines (Principal Solicitor)

Need Help?

If you need any advice and/or support in relation to the development and implementation of a mandatory COVID-19 vaccination policy, please do not hesitate to contact our office on (07) 3324 1055.

Disclaimer

The contents of this article are general in nature and is for information purposes only. The content of this article does not constitute legal advice and should not be used as such. Should you require assistance with a specific legal matter, it is recommended that you seek appropriate advice.

Liability limited by a scheme approved under professional standards legislation

[1] (Supreme Court of New South Wales, 2021/00252587, commenced 30 September 2021).

[2] [2021] FWC 2156 (20 April 2021).

[3] John Edward Larter v The Honorable Brad Hazzard MP, Minister for Health and Medical Research (Supreme Court of New South Wales, ​2021/00259688, commenced 24 September 2021).

[4] [2021] FCA 1372.

[5] [2021] FWC 2989 (26 May 2021).

[6] [2021] FWCFB 6015.

[7] [2021] FWC 2156.

[8] (c2021/7023).

[9] NSD1040/2021