Like the Pat Benatar song, we are currently in a world where the majority of people are saying ‘hit me with your best shot’ and getting one of the vaccines for Coronavirus. There are still some people, however, who are unwilling or reluctant to get a vaccine.
All businesses, including those in regional areas, will be left with a difficult decision about what to do in relation to unvaccinated people, whether that is employees, contractors or customers.
The decision in relation to contactors and customers is a little easier than employees- if someone wants to, for example, make it a condition of a contractor working on a farm or a customer coming into a shop that they are vaccinated then it is a relatively straightforward exercise (although policing it may be another matter).
It is less straightforward when it comes to employees- the reality is that it is a legal minefield with a lot more uncertainty as it is unchartered waters.
We have seen a number of businesses introduce mandatory vaccinations, such as Qantas, Telstra and BHP, but the question still remains- can employers make vaccinations mandatory? It’s a complex question.
Why do businesses need to consider the issue at all? Each business has an obligation to ensure, so far as reasonably practicable, the health and safety of their workers. This responsibility includes taking reasonable steps to minimise the risks of exposure to COVID-19 in the workplace. A business will potentially expose itself to risk if it does not do what it can to minimise the risk in relation to COVID-19.
The reasonableness of a mandatory vaccination decision will potentially vary from business to business. There are a range of factors that need to be taken into account, including the terms of any employment contract, award or agreement, the nature of the job in terms of the level of contact with the public, including those more vulnerable to COVID-19, as well as any laws regarding anti-discrimination and privacy.
In some lines of work, such as someone working in a hospital or aged care facility, public health orders will make the decision easy as they will mandate that workers must be vaccinated. For those who aren’t caught by any public health orders, in order to make a decision on mandatory vaccination there will need to be an assessment of the type of work being undertaken, the types customers or suppliers and the interaction with them, and the risk of transmission within the workplace.
Unfortunately there isn’t a ‘one size fits all’ approach- the only certainty is every business is going to have to closely scrutinise a range of factors before making a decision regarding mandatory vaccination.