As Federal and State governments move to increase the supply of COVID vaccine in Australia, more and more employers are asking whether they can legally require their staff to get vaccinated.
This question has been hotly debated in recent days, given the highly publicized decision of food and vegetable giant SPC to prevent staff (and visitors) entering their food processing facilities after November unless they have been vaccinated. The move has been applauded by some employer groups as a sensible solution to the management of the business risk of COVID 19 but has also been opposed by unions and civil liberty groups who have branded the policy as ‘unfair and unreasonable’.
But is the SPC move legal? Can employers force their staff to vaccinate?
Unfortunately, there is currently no definitive answer to this question. Employees are required to comply with all “lawful and reasonable” directions of their employer under Australian employment law and the employer is required to take all reasonable actions to ensure that their workplace is safe under relevant State/Territory work safety legislation – but they must also respect privacy legislation and the workers individual rights to make their own health decisions.
“So the answer to the question of whether it is legal to require staff to vaccinate hinges on whether a requirement for staff to vaccinate is a ‘lawful and reasonable’ action”, said ACAPMA CEO Mark McKenzie.
The Fair Work Ombudsman (FWO) – the national arbiter of workplace disputes – suggests that there are limited circumstances where an employer can compel their employees to be vaccinated. The FWO suggests that the relevant factors an employer should consider before issuing any instruction on this issue include:
- whether a specific law (such as a state or territory public health law) requires an employee to be vaccinated
- whether an enterprise agreement, other registered agreement, or employment contract includes a specific provision about requiring vaccinations
- if no law, agreement or employment contract applies that requires vaccination, whether it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated (which is assessed on a ‘case by case’ basis).
Further considerations include whether employees have a legitimate reason for not being vaccinated (for example, a medical reason), and how protections for employees under anti-discrimination laws may apply (Additional guidance on compulsory staff vaccination is included on the Fair Work Ombudsman’s website at COVID-19 vaccinations: workplace rights & obligations – Fair Work Ombudsman).
“Setting aside the legal debate, there are a lot of things that an employer can do to ‘strongly encourage’ staff vaccination without actually making it compulsory”, said Mark.
It is worth noting that the SPC staff vaccination policy announced this week did not simply involve the Company introducing compulsory vaccination from November 2021. The policy was accompanied by a raft of new actions designed to make it easier for staff to get vaccinated. These measures included:
- Providing paid time off for staff to get vaccinated
- Providing additional paid sick leave for staff who have an adverse reaction to their vaccinations
- Allowing exemptions for staff on a case-by-case basis, where a staff member has received advice from their doctors that they should not receive a vaccination.
In our industry, a small NSW fuel retail business recently sent out a message to staff that provides a great example of how to walk the ‘fine line’ between reducing the risk of COVID contagion at fuel sites and observing the requirements of Australian employment law, when it comes to the issue of staff vaccination (The business provided permission for ACAPMA to reproduce the message, with some minor edits to protect privacy, and this message is provided at the bottom of this article).
“This particular communication is a great example of how to work with staff to encourage vaccination and contains four important elements, namely: (a) a discussion of why the business believes it is important for staff to vaccinate, (b) affordable and meaningful incentives for staff to vaccinate, (c) links to sources of reliable information designed to counter some of the vaccine myths that are circulating in the community, and (d) a clear statement that staff are not being forced to vaccinate”, said Mark
In the meantime, ACAPMA continues to work with Australian State and Territory governments to promote increased opportunities for the early vaccination of front-line fuel distribution and fuel retail staff.
Members with questions about vaccination policy in the workplace should contact the ACAPMA Secretariat by emailing communications@acapma.com.au or calling 1300 160 270.
Example of a staff communication on workplace vaccination (reproduced with permission)
As you’re well aware COVID has a pretty tight grip on Sydney at the moment and really isn’t budging. Another 230 cases today and the death of a Sydney man in his 20’s from COVID. The government rhetoric is now that the only way out of this is through vaccination, as has been the case for the rest of the world. We had a good (or perhaps lucky) run in Australia for a while… but that’s now over. Last week more than 11 million Australian’s were in lockdown! As you can see from the photo, I’ve had one jab and am waiting for my second. I estimate, only from conversations, probably 15% of our workforce is vaccinated, which is roughly in line with the country. 4m people are now fully vaccinated in the country, with another 4m partially vaccinated and we’re running at about 1m jabs per week. We’re significantly lagging the rest of the world with most major developed world economies over 50% vaccinated with some closer to 70%. There have been over 4.2 billion vaccinations given now around the world and Australia ranks at 77th on the world list (currently being beaten by Mongolia, Bhutan, Malta etc).
The government has outlined its roadmap for releasing restrictions – the first stage at 70% vaccination and the second stage at 80% vaccination. Remember our ‘old life’ ? When we could go to any friend’s house with any number of people, jump on a plane and go to any state whenever we wanted, could go on holidays to another country without batting an eyelid, where our Olympians performed to cheering crowds and of course… dancing and standing up at the pub. Yes… without a mask on!!
We have become de-sensitized to the ‘adapted world’ we are in now, where restrictions have become the norm! I lost a good friend a couple of weeks ago to depression (he lived on his own through lockdown) and none of our friends could go to the funeral. It was heartbreaking. It’s certainly an odd and very memorable time and it’s been going for the best part of 18 months now!! At 80% vaccination, according to the government’s roadmap, we can travel from country to country again without restrictions. We all deserve a holiday at the other end!!!
Like you, I want to enjoy the freedoms and liberties that we have all taken for granted before now and the only way that will happen is for vaccination to occur at a high rate.
As an employer I want to support this as much as possible, so I have decided to support all staff to be proactive in getting their vaccination, by giving 2 hours pay to all staff when they become fully vaccinated. In addition should you get called up while you’re on shift, we will do everything possible to support the time needed so you can go and get your shot if that’s the only time possible. In addition, we’re going to run a ‘Vaccination lottery’, whereby everyone who is fully or partially vaccinated by the end of October will be entered into a “winner takes all” $1000 cash prize from me! (You’ll need to show your certificate to your store manager to be entered).
If you look at the COVID stats by vaccinated vs unvaccinated it’s a pretty compelling tale. Whilst vaccine doesn’t stop you from getting it (or passing it on) it severely limits the effect and generally vaccinated people will pass it onto roughly half as many people as non-vaccinated people. There is a day that jumped out at me a week ago in Sydney … of the 141 cases in NSW that day, 1 had received one shot and 140 had received no shots. So far no one has been admitted to ICU who’s been fully vaccinated. 15 people have died in this Sydney outbreak alone from COVID – none of them vaccinated obviously.
It is clear that vaccination is the only way to normality here (as has been the case with other outbreaks through history such as yellow fever, typhoid, TB etc). Gladys said yesterday “August is vaccine month” and with a concerted effort from all citizens it is possible under the roadmap for restrictions to ease by October! I’m supporting you in whatever way I can to register for your jab as quickly as possible.
As I’ve outlined before, we’re losing considerable money in Sydney at the moment and clearly, I have a vested interest in seeing the economy return to normal (and people return to our stores) as quickly as possible! This is really slowing the business down now and all stores have reduced hours as compensation, which has reduced our losses by roughly 10-15%
I registered last week through our local vaccine hub, Jordan went through http://www.healthengine.com.au and Ben rang his GP. All of us were in & vaccinated within 48 hours (One with Pfizer and 2 with AZ). In addition to the super vaccine hubs there are also a multitude of GPs and pharmacies now vaccinating. (This is the official government site https://covid-vaccine.healthdirect.gov.au/eligibility?lang=en)
There is a huge amount of misinformation out there, please ensure you look at correct and official information rather than simply circulating opinions. It’s tough to decipher at the moment and I’m only too happy to discuss it with you if you’d like! Here is a 60 Minutes clip and an ABC article that lay it out pretty simply. Both are well worth a watch / read if you’d like to know more.
60 mins clip: https://www.youtube.com/watch?v=TzrYkvNH98c
ABC article: https://www.abc.net.au/news/2021-08-01/covid-vaccines-effectiveness-risks-infections-explained/100333024
What really jumped out at me in the 60 mins clip was the statistics:
- Chance of being hit by a car as a pedestrian = 1 in 600
- Chance of blood clot from birth control pill = 1 in 1000
- Chance of being hit by lightning = 1 in 140,000
- Chance of dying from A/Zeneca vaccine is approx. 1 in 1 million.
To be clear we’re not forcing people to get vaccinated, we’re simply ensuring you have proper information about it and ultimately, I’m taking a leadership position as a business owner to remove whatever barriers I can to make it possible, personally I have no hesitation with it – I’m simply running off the statistics of the experts and the 4 billion jabs that have been handed out already. I make no secret of the fact that I am keen to resume a pre pandemic life like everybody else!
Thanks for reading & listening everyone. Please reach out whenever if you’d like to chat about this. I look forward to paying you your 2 hours’ worth hopefully soon!!!
ACAPMA
