What are the safety and employment issues for consideration regarding the vaccine?

Executive summary

There a number of safety and employment issues for consideration regarding the vaccines. These issues primarily arise under work health and safety laws. For most organisations, work health and safety laws are state laws, but for some organisations the Federal work health and safety laws apply.¹

Safe Work Australia (which sets the health and safety standards followed by work health and safety regulators around Australia) released guidance on 19 February 2021 regarding the obligations an organisation owes under work health and safety laws, and how these relate to vaccines (see here). The Fair Work Ombudsman also released guidance on 19 February 2021 regarding COVID-19 and Australian workplace laws (see here).

This memorandum takes into account the guidance provided by Safe Work Australia and the Fair Work Ombudsman on 19 February 2021, as well as the views of the Australian Government, in particular the Australian Health Protection Principle Committee (AHPPC) at the time of publication.

This is, however, an area which may be subject to legislative and regulatory change at short notice. It is critical that organisations continue to review and apply the guidance provided by the Federal Government (including the AHPPC, Safe Work Australia and the Fair Work Ombudsman), and state and territory Governments (including state and territory public health orders and guidance from state and territory work health and safety regulators) when considering safety and employment issues regarding the vaccines.

Our key recommendation is for organisations to continuously keep a practical focus to any considerations about any vaccine, as much of the information appears to be relatively fluid. At the time of publication, the timetable for vaccination contemplates that vaccines will not be accessible to most people until around mid 2021. By that time, important knowledge about the vaccines may have emerged (such as concerning the efficacy in preventing transmission, the practical availability of vaccination, and whether state governments introduce any mandatory vaccine requirements for particular occupations through a public health order) which will impact on considerations about the vaccines.

What is the Government stance regarding vaccination?

At the time of publication, the Federal Government’s stated policy is that vaccination will be “voluntary, universal and free”² and it will be available to all persons living in Australia.

The Attorney-General Christian Porter has indicated that the Federal Government is unlikely to mandate vaccination, and that State health orders will be the primary tool to drive vaccination rates.

At the time of publication, no state or territory has made legislation or public health orders requiring vaccination for certain workers or industries, however organisations will need to monitor this on an ongoing basis and comply with any applicable legislation or orders that are made.

State and territory governments did, for example, use their powers last year to mandate influenza vaccinations in aged care workers. At the time of publication, the Queensland Government had indicated that it may mandate COVID-19 vaccinations for aged care workers.

What has the Australian Health Protection Principal Committee (AHPPC) recommended?

On 23 January 2021, the AHPPC stated they strongly encourage COVID-19 vaccination but do not recommend mandating it for the aged care workforce at this time. This is because evidence about the efficacy of the vaccines in preventing transmission of COVID-19 is not yet available and there is no clear date by which all residents, staff, visitors and carers will have an opportunity to be vaccinated.

The AHPPC also stated that all available interventions should be relied on to maximise influenza vaccination for workers in aged care.

What guidance has Safe Work Australia issued?

The guidance issued by Safe Work Australia on 19 February 2021 is accessible here and summarised below.

Safe Work Australia states that is that it is up to organisations to conduct their own risk assessment to determine which control measures are “reasonably practicable” for managing the risk of exposure to COVID-19 in the workplace, and that vaccination is certainly one in a whole range of control measures that should be considered as part of this risk assessment.

However, Safe Work Australia concluded that, at least at the present time “it is unlikely that a requirement to be vaccinated will be reasonably practicable”. This is because, for example:

1. at present, public health experts, such as the AHPPC have not recommended a vaccine be made mandatory in any industry;
2. there may not yet be a vaccine available for your workers;
3. your workplace may already be “low risk” – in that the risk of exposure to COVID-19 is already being minimised as far as reasonably practicable through existing control measures; and
4. some workers will have medical reasons why they cannot be vaccinated.

Safe Work Australia says that ultimately, whether an organisation should require workers to be vaccinated will depend on the particular circumstances existing at the time the organisation is undertaking its risk assessment. Safe Work Australia recommends the following factors should be considered on an ongoing basis:

1. Is the AHPPC recommending COVID-19 vaccinations for all workers in your industry?
2. Will your workers be exposed to the risk of infection as part of their work?
3. Do your workers work with people who would be vulnerable to severe disease if they contract COVID-19?
4. What is the likelihood that COVID-19 could spread in the workplace?
5. Do your workers interact with large numbers of other people in the course of their work that could contribute to a ‘super-spreading’ event if your workers contract COVID-19?
6. What other control measures are available and in place in your workplace? Do those control measures already minimise the risk of infection, so far as is reasonably practicable?
7. Would a requirement to be vaccinated be unlawful in the circumstances? For example, would it discriminate against a class of employees?

Safe Work Australia has also clarified that:

1. in most circumstances, a worker will not be able to rely on the WHS laws to refuse to come to work because another worker isn’t vaccinated, however this will depend on whether, in the circumstances, the worker has a reasonable concern that to come to work would expose them to a serious risk to their health or safety from an immediate or imminent exposure to a hazard; and
2. it is unlikely that WHS laws require organisations to ask customers and visitors for proof of vaccination, however if you want to require this as a condition of entry to your premises, you should seek advice as there may be privacy and discrimination issues that apply.

Other key points made in the Safe Work Australia guidance are that:

1. organisations should consult with their workers about vaccines (for example by directing workers to review the information on the Department of Health website); and
2. organisations must continue to apply all reasonably practicable control measures to minimise the risk of exposure to COVID-19 in the workplace (e.g. physical distancing, good hygiene and regular cleaning), even after the workforce has been vaccinated. This is because at this stage, there is insufficient evidence as to whether the vaccines will stop a vaccinated person from being infected with the virus, which means that a vaccinated person may unknowingly carry and spread the virus to others around them.

Can employers require their workforce to be vaccinated?

This is a not a one size fits all answer. Businesses will need to consider their employees, as well as contractors, suppliers, and customers / clients when developing their approach.

An employer could require its workforce to be vaccinated where:

1. there is an applicable public health order requiring persons to be vaccinated against COVID-19 (as noted above, there were not any such orders at the time of publication, however organisations will need to monitor this on an ongoing basis); or
2. the employer can invoke the existence of a duty of care (to employees or to others who may be effected by the operation of the business) which justifies the vaccination of its workforce or a relevant part of the workforce.

In the absence of an express statutory mandate requiring employees to be vaccinated, the key consideration for organisations will be whether the reasonableness of mandating the vaccine arises under health and safety laws.

Insofar as health and safety laws are the source of the reasonableness of a direction, those duties apply not only to employees but also to contractors and others in the workplace. Therefore whether a vaccination requirement is warranted under health and safety obligations cannot be considered only in the context of employees, it must also consider contractors and other persons.

Guidance published by Safe Work Australia on 19 February 2021 is that it is unlikely that a requirement for workers to be vaccinated will be reasonably practicable. Ultimately, however, it will depend on the particular circumstances at the time the risk assessment is being undertaken.

In the case of employees, a direction to be vaccinated (whether in reliance on an implied contractual term or an express contractual provision) would need to be lawful and reasonable to be enforceable.

If a risk assessment indicates that a requirement to be vaccinated is reasonably practicable, any such direction would need to be implemented carefully, to avoid potential discrimination claims and unfair dismissal claims. There are also other issues which would arise, in terms of managing contractual and other relationships with contractors, suppliers and customers. Clearly there will be significant operational and legal risks which require consideration.

What obligations do businesses have under work health and safety law?

Where there are no applicable public health orders mandating vaccination, businesses will need to conduct a COVID-19 risk assessment, taking into account the full range of available COVID-19 control measures, including vaccination.

Under work health and safety laws, organisations have a primary duty of care to ensure the health and safety of workers (employees and contractors) so far as is reasonably practicable, and to ensure that the health and safety of other persons (eg customers and suppliers), is not put at risk from the conduct of the business or undertaking. This requires an organisation:

1. to eliminate risks to health and safety, so far as is reasonably practicable; and
2. if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as reasonably practicable.

Organisations may not be able to completely eliminate the risk of workers being exposed to COVID-19 while carrying out work. However, they must do all that is reasonably practicable to minimise this risk. In doing so, organisations must:

1. Undertake a risk assessment of exposure to COVID-19 from their business activities. The risk assessment should be conducted by a competent safety professional;
2. Consider the available control measures and how they will help to manage the risks of COVID-19, including any available vaccines, taking into account available evidence about the vaccines;
3. Consult with workers and health and safety representatives about COVID-19 and relevant control measures, including the vaccines; and
4. Determine what control measures are reasonably practicable.

Reasonably practicable is discussed in the following question. As stated above, Safe Work Australia and the Fair Work Ombudsman published guidance on 19 February 2021 stating that, at the present time, it is unlikely that a requirement for workers to be vaccinated will be reasonably practicable. Ultimately, however, it will depend on the particular circumstances at the time the risk assessment is being undertaken.

Further consideration will be required for those workplaces where workers and other persons are at a significantly increased risk of contracting COVID-19 because of the nature of the work or the specific features of the workplace (eg medical facilities, emergency services, quarantine facilities, meatworks).

Employees and contractors do not have a different status under health and safety laws – an organisation’s duty to ensure the health and safety of contractors is the same as the duty to ensure the health and safety of employees. Of course, there may be practical differences in the way this duty is satisfied for employees and contractors. An organisation also has a duty to ensure that its activities do not put at risk anyone else’s health and safety, including any visitors and members of the public. Accordingly, any vaccine program needs to consider all these groups of people. A simple analogy is the requirement to wear a hard hat on a construction site to mitigate the risk arising from falling objects – the requirement does not only apply to employees, it applies to everyone who attends the site, ie anyone who is exposed to that risk.

The risk assessment regarding vaccination may change as and when more evidence becomes available about the impact of vaccination in limiting transmission in certain occupational settings (for eg residential aged care).

The risk assessment will also be the factual and legal basis of the an organisation’s defence to any legal claim arising from a worker who contracts COVID-19 while at work and who says that could have been prevented had the vaccine had been mandated.

What do businesses need to consider when conducting a risk assessment regarding vaccination?

The fulfilment of the primary duty in work health and safety legislation requires an organisation to identify and assess all risks relating to its undertaking and, in light of that assessment, to formulate procedures/practices to eliminate the risks or reduce them to the greatest extent reasonably practicable.

What is reasonably practicable means, at a particular time, what is reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

1. the likelihood of the hazard or the risk concerned occurring;
2. the degree of harm that might result from the hazard or the risk;
3. what the person concerned knows, or ought reasonably to know, about—
4. the hazard or the risk; and
5. ways of eliminating or minimising the risk;
6. the availability and suitability of ways to eliminate or minimise the risk; and
7. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

The matters that would be examined in a risk assessment regarding COVID-19 vaccination are set out in guidance released by Safe Work Australia on 19 February 2021 (summarised in section 5 above).

The Safe Work Australia guidance states that the risk assessment should take into account available evidence about the vaccines. This would include any emerging evidence about the efficacy of the vaccines in preventing transmission of COVID-19 (as distinct from evidence about reduction in symptoms), and the information supplied by the Federal Government, and Therapeutic Goods Australia regarding the vaccines and any short or long term side effects.

How would an employer implement a vaccination requirement?

Assuming a risk assessment indicates that a requirement to be vaccinated is reasonably practicable, an employer’s ability to impose a vaccination requirement would depend on the contract of employment.

There is an implied term in every employment contract under which the employee is obliged to comply with the lawful and reasonable directions of an employer that falls within the scope of employment.

The implied term may also be supported by express contractual terms which require an employee to comply with directions and policies of an employer (eg safety policies).³  An express contractual provision of this type is also subject to the same conditions of validity / enforceability as the implied term – ie lawful and reasonable.

A direction will be “lawful’ if it falls within the scope of the employee’s duties and it does not violate the laws of any state, territory or the Commonwealth.⁴ The scope of the employee’s duties depend on the nature of the employment, the terms of the contract (and applicable industrial instruments) and other obligations under statute and customary practice.

The law is reluctant to permit employers to regulate an employee’s conduct outside the workplace. However an employer is able to do so where the employee’s conduct has the capacity to adversely impact the effective conduct of the employer’s business, the employer’s reputation, or safety in the workplace.⁵  Relevantly, the Fair Work Commission held that requiring an employee to complete a COVID-19 travel survey (which covered both work and personal travel) was a lawful and reasonable direction for the purposes of the employer attempting to fulfil its workplace health and safety obligations and to protect the employer and its employees from risk.⁶

A direction would not be lawful if it breached anti-discrimination laws. Therefore in implementing a vaccination requirement, it would be necessary to consider whether it could be discriminatory in its application, for example, where it is directed to persons for whom the vaccine has not been approved for use (eg people who are less than 16⁷) and to those who have been identified as not suitable for COVID-19 vaccination – for example pregnant women, people with a history of severe allergic reactions, and immunocompromised individuals.⁸

The direction must also be reasonable. Factors such as the requirements of the position, the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument governing the relationship, determine whether a direction is reasonable.⁹ Whether vaccination is a reasonably practicable measure to eliminate or minimise risks to health and safety will be highly relevant to determining whether the direction is reasonable.

The question of reasonableness needs to be assessed on a case by case basis. The occupational requirements of a particular job and workplace may mean that certain directions are lawful and reasonable, which would not be lawful and reasonable in other contexts. The Fair Work Ombudsman guidance published on 19 February 2021 indicates that circumstances where a vaccination direction may be more likely to be reasonable include where:

1. employees interact with people with an elevated risk of being infected with COVID-19 (eg hotel quarantine or border control); or
2. employees have close contact with people who are highly vulnerable to the health impacts of COVID-19 (eg employees working in health care or aged care).

Unlike the “usual” direction or policy requirement underpinned by contract (eg. obligations to follow safe work procedures or comply with rules relating to use of the employer’s IT system), a vaccination requirement would oblige employees (irrespective of individual consent) to undergo a form of medical procedure in order to attend work. The lawfulness and reasonableness of such a measure could only be justified as a means to substantially eliminate or reduce a risk to health and safety relating to the organisation’s operations (as discussed in the preceding questions).

The work health and safety legislation requires organizations to consult with workers regarding health and safety hazards, risk and controls, and to consult with other originations with which it has a health and safety duty regarding a shared matter. This means that in regard to any vaccination policy and procedures, organisations need to utilize their existing consultation and issue resolution mechanisms to engage with workers about the risks and suggested control measures.

When implementing any such requirement, it would also be necessary to take account of the provisions in enterprise bargaining agreements regarding consultation on safety matters and workplace change. Issues in respect of contractors are discussed briefly in the following question.

Can organisations impose vaccination requirements on contractors, consultants?

As stated above, Safe Work Australia and the Fair Work Ombudsman published guidance on 19 February 2021 that it is unlikely that a requirement for workers to be vaccinated will be reasonably practicable. This conclusion, and the reasons supporting this conclusion, apply equally to contractors and consultants, as well as employees.

Nevertheless, if a risk assessment indicates that a requirement for contractors and consultants to be vaccinated is reasonably practicable, we recommend any such requirement be imposed consistently for employees, subcontractors and consultants, in accordance with the findings of the risk assessment.

In order to implement a vaccination requirement for contractors and consultants, it would be necessary to consider the existing contractual arrangements with these parties, and whether they would support enforcing a vaccination policy, or whether contractual variations would be required.

The work health and safety legislation requires organisations to consult not only with its own workforce, but with other organisations with which it has a health and safety duty regarding a shared matter.

Would implementing a vaccination requirement be discriminatory?

The development of any vaccination requirement would need to be carefully managed to ensure it does not result in unlawful discrimination.

In respect of employees:

Anti-discrimination legislation at a State and Commonwealth level, and section 351 of the Fair Work Act 2009 (Cth), make it unlawful for an employer to discriminate directly or indirectly against an employee on the basis of a protected attribute. Direct discrimination involves an act or omission which treats an employee with the protected attribute less advantageously than an employee without that attribute would be treated in like circumstances. Indirect discrimination involves the imposition of a rule or requirement with which persons who have a protected attribute are less able to comply and the rule or requirement is unreasonable.

Legislation in some jurisdictions excludes otherwise discriminatory conduct in the workplace, where the action is taken in reliance on health and safety laws, or because of the inherent requirements of the position. If a risk assessment determined that COVID-19 vaccination was essential for a particular role and workplace, an employer may be able to argue that COVID-19 vaccination is an inherent requirement of that position, in defending any discrimination claims. However the success of this argument would depend on evidence as to the efficacy of the vaccine/s in preventing transmission vs other control measures, among other things.

A vaccination policy which has appropriate carve-outs in respect of:

1. persons for whom the vaccine has not been approved for use and
2. those with medical or other contraindications
3. would not give rise to valid discrimination claims on the basis of age, gender / pregnancy or disability. This leaves religion and political opinion as attributes which may form the basis of a refusal to vaccinate and which may attract some protection under anti-discrimination laws.

Discrimination related to religion or religious belief can be unlawful in Victoria, Queensland, WA, ACT, NT, and Tasmania.¹⁰ The adoption of a vaccination requirement is more likely to align with indirect discrimination and therefore will be subject to the proviso of reasonableness, which is the same as that attaching to the operation of the implied term regarding directions (as discussed above). So where the imposition of a vaccination requirement is considered to be a reasonable direction by the employer, liability for indirect discrimination is unlikely to arise (although that does not mean that a claim will not be made).

Recent amendments to the Health Services Act 1988 in Victoria specifically provide that a direction to hospital employees to be vaccinated against or prove immunity to specified diseases does not constitute discrimination on the basis of political belief or activity or religious belief or activity for the purposes of the Equal Opportunity Act 2010.¹¹

In relation to political opinion, an employee may be a participant in a broader movement that objects to the use of vaccines generally. However, in our view, such an argument would face substantial barriers, and would require a court to adopt a much broader interpretation of the term “political opinion” than has been adopted to date.

Similar care would also need to be taken when imposing vaccination requirements on individual contractors / consultants and on customers / clients, so as not to offend discrimination laws. Even if such a requirement was considered to be warranted, it would be premature to apply the requirement, given the timing of the roll out of the vaccine.

Would non-compliance with a vaccination requirement be lawful grounds for dismissal?

Where an employee disobeys a requirement properly given under an express or implied term, then he/she may legitimately be the subject of disciplinary action including dismissal.

However enforcing compliance with any vaccination requirement would need to be carefully managed, to minimise the prospect of unfair dismissal and / or adverse action claims under the Fair Work Act.

Two recent Fair Work Commission decisions have briefly considered whether an employer can direct an employee to receive an influenza vaccination, but neither have resulted in binding precedent. While the obiter comments in both cases indicate that a direction to receive an influenza vaccination may be lawful and reasonable in the context of child care and aged care, we will need to wait for the merits decision in Glover v Ozcare (Ozcare)¹²  for more definite guidance (which was not available at the time of publication). Even if the merits decision in Ozcare does support a vaccination requirement, this may be confined to influenza vaccination, rather than supporting the proposition generally.

In Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083, the applicant (a child care worker) sought to argue whether it was ‘reasonable’ of her employer to direct her to receive the flu vaccination under the Victorian legislation. The application was dismissed as the applicant filed her application outside the statutory time limit. In considering whether the merits of the application warranted enabling the claim to proceed, DP Asbury stated:

“While I do not go so far as to say that the Applicant’s case lacks merit, it is arguable that the Respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason…”¹³

In Ozcare, the Fair Work Commission was required to determine a jurisdictional objection by the employer (Ozcare), that the employee had not been dismissed but was on unpaid leave after she had refused a mandatory flu vaccination. Commissioner Hunt concluded that the applicant had been dismissed by Ozcare as it had refused to roster her for work once her paid leave entitlements were exhausted. Commissioner Hunt observed:

“In my view, each circumstance of the person’s role is important to consider, and the workplace in which they work in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction.…It may be that a court or tribunal is tasked with determining whether the employer’s direction (to receive the influenza and COVID-19 vaccination] is lawful and reasonable, however in the court of public opinion, it may not be an unreasonable requirement. It may, in fact, be an expectation of a large proportion of the community.”¹⁴

Any vaccination policy should contemplate a series of graduated steps before an employee is disciplined for refusal to be vaccinated. The starting point would be discussions with the employee aimed at determining the reasons for refusal and obtaining suitable substantiation (details about religious membership and beliefs, health issues or concerns etc.). There would follow steps of consultation to see whether a mutually satisfactory solution can be reached. Disciplinary action in the form of changed work duties, barring from the office or termination would be resorted to only after those efforts had proved unfruitful.

As an alternative to requiring employees to be vaccinated, can employers strongly recommend that all employees receive the vaccination?

At the time of publication, we do not recommend that employers provide “across the board” recommendations regarding vaccination as this may be construed as a requirement. Any recommendations about the need for vaccination should be tailored to the specifics of the workforce (for example, employees working with vulnerable clients).

Employers should provide employees and workers with access to accurate information about the vaccine, eg Government websites. Messaging around the vaccine can and should be consistent with Government recommendations.

Employers may wish to consider providing paid leave for employees to be vaccinated. However employers need to be careful about the prospect of indirect discrimination when developing and implementing any vaccination incentive programs.

Can employers require staff who have not been vaccinated, to continue to work from home until advised otherwise?

An employer would not be able to direct its employees to continue working from home unless and until they elect to be vaccinated, unless this was supported by an appropriate risk assessment (as this would essentially have the same effect as mandating vaccination).

Requiring unvaccinated employees to work from home may be a viable option where a risk assessment demonstrates that a risk mitigation strategy – whether in protection of workers or customers – favours unvaccinated employees remaining at home. For example, workers who fall into the categories identified as particularly vulnerable to COVID-19, who are already working under greater restrictions than others, may be subject to such a direction.

A direction to work from home may be a lawful and reasonable direction, which could be issued in circumstances where employees do not wish to receive the vaccination. However, this should be based on a risk assessment indicating that this approach is required.

An employer would need to exercise caution with this approach where an employee has reasonable grounds for refusing the vaccination. Reasonable grounds may include medical reasons (such as a known intolerance, allergy or underlying medical condition that would be exacerbated by a vaccine) or religious reasons. If an employee has reasonable grounds for refusing vaccination, they may allege that a direction to work from home amounts to a detriment which constitutes a form of workplace discrimination or adverse action. Similarly, if they were dismissed for not complying with the direction they may have grounds to allege unfair dismissal.

Can an employee refuse to attend a workplace if other co-workers are not vaccinated?

The Fair Work Ombudsman guidance published on 19 February 2021 states that assuming there is no public health order preventing attendance, it is unlikely that an employee could refuse to attend their workplace where a co-worker isn’t vaccinated against coronavirus, because:

1. vaccination is not mandatory and most workplaces won’t be able to require their employees to be vaccinated
2. the co-worker may have a legitimate reason not to be vaccinated (for example, a medical reason).

If an employee refuses to attend the workplace because a co-worker is not vaccinated, the employer may be able to direct them to attend work. Whether this direction would be lawful and reasonable will depend on all the circumstances, including the employer’s work health and safety obligations.

To manage these concerns, employers should ensure they continue to share information about the steps they are taking to ensure a safe workplace.

Could employers require employees to provide proof of vaccination or a vaccination certificate?

Employers may be able to request that employees provide proof of vaccination or a vaccination certificate. However it would not be reasonable for an employer to require or direct that employees provide proof of their vaccination status (where employees do not wish to volunteer this information).

If grounds exist for an employer to direct employees to be vaccinated, an employer could ask employees to provide evidence of their vaccination status. This direction would need to be lawful and reasonable.

Before requesting this information (or requiring it to be provided), employers should carefully consider the utility of the information. The utility of understanding which workers are vaccinated will depend on what is known about the specific vaccine, in respect of preventing the disease from developing but also in preventing transmission.

Information about a person’s vaccination status would be considered health information under the Privacy Act 1988. In the case of existing employees, provided the collection of the information relates directly to the employment relationship, this would form part of the employee’s “employee record” and would be exempt from the Privacy Act. In the case of prospective employees, this would not be covered by the employee records exemption and would need to maintained in accordance with the Australian Privacy Principles under the Privacy Act 1988.

Vaccination providers will be required to report a person’s COVID-19 vaccination to the Australian Immunisation Register. The Federal Government has announced that Australians will be able to provide proof of vaccination through an app on their phone.

Can organisations ask for proof of vaccination for persons entering the business?

Safe Work Australia’s guidance published on 19 February 2021 states that it is unlikely that WHS laws will require businesses to ask customers and visitors for proof of vaccination. They suggest that businesses may want to require this as a condition of entry to premises. They note that businesses should seek advice as there may be privacy and discrimination issues that apply.

We consider there would be limited circumstances where it might be possible to impose a vaccination requirement on customers and visitors, for eg where a risk assessment indicates that your workers may be at high risk of contracting COVID-19 through exposure to customers / clients and it is not practical for customers to adhere to other controls such as masks and social distancing. However this would need to be very carefully managed to reduce the prospect of discrimination, as discussed in the next question.

In this regard, Air New Zealand recently announced they will trial a digital COVID-19 “vaccine passport” for flights between Auckland and Sydney during April. The “Travel Pass” app has been developed by the International Air Transport Association.

Can an employer have different requirements for offices vs work sites?

Yes. A risk assessment is based on the actual workplace and will differ depending on the requirements of the workplace, level of interaction between employees, involvement or attendance of vulnerable persons and other measures that can be put in place to prevent the spread of COVID-19 and protect workers.

As stated above, in most workplaces, compulsory vaccination of workers is unlikely to be viewed as a reasonably practicable step in meeting an organisation’s primary duty to ensure health and safety of workers; rather employers should continue to implement existing risk control measures based on social distancing, mask wearing and hygiene. To the extent that these control measures already vary between an organisation’s offices and work sites (by virtue of the workplace environment and the day-to-day activities that take place), there is no reason why this should not continue.

In the future, when more is known about the vaccines, we anticipate that the risk assessment may provide a basis for requiring vaccination in those work activities where the inherent requirements of the role lead to a far higher likelihood of contracting COVID-19 or fatal consequences arising from transmission, such as in aged care workers.

What would be legitimate grounds for refusing to receive a COVID-19 vaccination?

Where a risk assessment indicates that vaccination is a reasonably practicable control measure to deal with the risks of COVID-19 transmission in a workplace, any vaccination policy would need to be drafted so that it does not apply to persons who cannot receive the vaccine or for whom it is medically contraindicated.

Legitimate grounds for refusing the vaccination would include:

1. persons for whom the vaccine has not been approved for use (e.g. people who are less than 16 ); and
2. persons have been identified as not suitable for COVID-19 vaccination, eg pregnant women, people with a history of severe allergic reactions, and immunocompromised individuals.

There may also be other legitimate grounds for objecting to be vaccinated, such as religious grounds, however this is to some extent fact specific and will depend upon the individual employee’s circumstances and whether the direction is reasonable in all of the circumstances, having regard to the risks in the workplace.

Can an employer keep records of who has and has not been vaccinated?

In circumstances where employees who have been vaccinated agree to disclose this information to their employer, it would be reasonable and appropriate to keep a record of the employees who have been vaccinated.

Employers should however ensure that confidentiality be maintained over any such record.

Employers would also need to be mindful how they use this information and make sure there is no unlawful discriminatory action towards vaccinated or unvaccinated employees. It would be prudent not to request this information until there is greater certainty regarding the various effects of the vaccines.

A record of an employee’s vaccination status would constitute personal information (health information). It is exempt from the Australian Privacy Principles, unless it is information obtained from a prospective employee who is not ultimately engaged.

What is the timetable for roll out of the vaccine?

1. Phase 1a of the Australian Government’s COVID-19 vaccine roll-out strategy commenced on 21 February 2021. The phases are:
2. Phase 1a – Quarantine and border workers, frontline health care workers, aged care and disability care staff and residents
3. Phase 1b – Elderly adults aged over 80, elderly adults aged over 70, other health care workers, Aboriginal and Torres Strait Islander people over 55, younger adults with underlying medical conditions, clinical and high risk workers eg police, emergency services, meat processing
4. Phase 2a – adults aged over 60 years, adults aged over 50 years, Aboriginal and Torres Strait Islander people between 18 and 54, other critical and high risk workers
5. Phase 2b – balance of adult population
6. Phase 3 – less than 18 year olds if recommended

The Pfizer vaccine, COMINARTY, has received provisional approval from the TGA. At the time of publication:

1. It has been approved for immunisation in Australia to prevent COVID-19 in individuals who are aged 16 and over. It has been shown to prevent COVID-19 symptoms, but it is not yet known whether it prevents transmission or asymptomatic disease.
2. Two doses are required, at least 4 weeks apart.
3. Approval is subject to Pfizer providing ongoing information to the TGA on its longer term efficacy and safety. The TGA will test each batch before supply and actively monitor safety.
4. It became available in late February.

The AstraZeneca vaccine has also received provisional approval from the TGA. At the time of publication:

1. It has been approved for immunisation in Australia to prevent COVID-19 in individuals who are aged 18 and over. It has been shown to prevent COVID-19 symptoms, but it is not yet known whether it prevents transmission or asymptomatic disease.¹⁶
2. Two doses are required, ideally 12 weeks apart, but as a minimum, 4 weeks apart.
3. Approval is subject to AstraZeneca providing ongoing information to the TGA on its longer term efficacy and safety.
4. Indications are that the AstraZeneca vaccine will be used from early March¹⁷, and that most Australians will receive the Astra Zeneca vaccine.

Can employers organise for vaccinations to be given at their worksites?

At the time of publication, the Australian Government has not published the locations at which the vaccinations will be administered.

The roll out strategy refers to vaccinations occurring in aged care and disability services in Phase 1 and workplace vaccinations in Phase 2, however there is no publicly available information indicating how employers can elect to participate in this process.

What are other businesses doing?

At the time of publication, we are not aware of any businesses that are mandating that their employees receive the COVID-19 vaccination.

It would be impractical to mandate vaccination at the time of publication as vaccinations are not available to the general population.

Businesses will need to conduct a risk assessment regarding vaccination. We recommend that businesses wait for further information about the vaccines, availability of vaccination, regulatory guidance and issuing of any mandatory vaccination requirements.