As the world continues to chart a changing course through the COVID-19 pandemic, Australian employers continue to look for options that enable them to keep the “doors open”, while best meeting their work health and safety (“WHS”) obligations within a complex legal environment.

Mandating vaccinations is unlikely to be an option for most Australian employers

For most Australian employers, mandating COVID-19 vaccinations for all staff will not be a realistic option.  In addition to similar guidance from the Fair Work Ombudsman, and State and Territory WHS authorities, the Fair Work Commission has previously ruled that mandating vaccinations for employees will not be a lawful and reasonable direction unless the employer can demonstrate that being vaccinated is an inherent requirement of the role (which requires more than the employer prescribing it as such).  While several recent decisions have provided some comfort to employers in high-risk industries, those decisions are unlikely to provide a basis for widespread mandatory vaccinations in most other workplaces, particularly where the risks of community transmission remain consistently low, and there are other reasonably practicable steps that can be taken.

Asking about vaccination status

In addition to the challenges associated with mandating vaccinations, there are additional challenges for employers who seek to understand whether or not their employees are, or are not, vaccinated.

A recent Australian study showed that:

• 60% of employers believe they should have the right to know whether current staff have been vaccinated against COVID-19,
• 40% of employers believe they should have the right to question job applicants as to whether they have been vaccinated;
• 37% of employees believe their employer should have a right to know their vaccination status;

Interestingly, the same study found that if employers offered vaccination related incentives at work, 48% would take it.  By contrast, only 18% would independently decide to have the vaccination once they were eligible.

Although the handling of employee personal information by a private sector employer is generally exempt from the Australia Privacy Principles (“APPs”) if it meets certain criteria, that exemption will not apply at the point of collection.  In some instances, that information sought may arguably not meet the requirements for collection under the APPs, and even once collected it may be arguable that it does not fall within the employer records exemption.  It’s also important to note that as health information, the collection of a person’s vaccination status is likely to be afforded a higher level of protection under the APPs (as sensitive information).  In that context, employers need to carefully consider whether questions related to the vaccination status of an employee will give rise to any new risks or requirements under the Privacy Act.

Even where the information can be collected, employers need to give careful consideration as to why they are collecting the information and the purposes for which it may be put to use.  In broad terms, the collection of information relating to an employee’s vaccination status may additionally expose the employer to discrimination-based allegations in some circumstances.

Against this backdrop, can Australian employers find alternate strategies in the steps taken by governments and employers overseas?

Using a carrot rather than a stick…

Overseas, several approaches are being pursued in incentivising vaccinations at work.  In Indonesia, over 22,000 companies have begun to pay for doses of the Unilever and Sinopharm vaccines in support of the Indonesian government’s vaccination program.

In the United States, some employers are offering workers a vaccine bonus or hosting vaccine clinics to encourage employees to get vaccinated.  Some US studies have also found that one third of the unvaccinated population would be incentivised to become vaccinated by a cash payment.  Another US study found that some companies are offering employees up to four hours of pay (two hours per dose), and flexible hours for salaried workers to make the time to get vaccinated.  In West Virginia, some employers are offering US$100 bonds for employers who do get the vaccination.

It has also been reported that supermarket chain ALDI stated that “providing accommodations so employees can receive this critical vaccine is one more way we can support them and eliminate the need to choose between earning their wages and protecting their well-being”.

Is there an opportunity here for Australian employers?

There are obviously any number of ways in which Australian employers could consider incentivising vaccinations for their employees.  These include: paid time off (outside existing personal leave accruals) to attend vaccination clinics; offering workplace vaccinations (similar to arrangements that are often made available with respect to annual flu vaccinations); paying or reimbursing any out-of-pocket costs associated with the vaccination; bonuses or other cash related incentives; and, awarding of additional annual leave or other benefits.

While the options for incentivisation are broad, Australian employers will still need to manage the risks that those programs may create. As recently discussed, potential harm to employees who suffer side effects as a result of mandatory vaccination (at the direction of the employer) may be the subject of employee claims and indemnification.  Similarly, the creation of rewards and preferential treatment within the employment context may give rise to potential claims of discrimination in some circumstances.  When assessing whether or not any discrimination to arise out of an incentive arrangement will be unlawful (for example, by restricting access to the benefit from those who are unable to be vaccinated on medical grounds), employers will need to consider whether or not the conditions of the incentive are reasonable having regards to the circumstances, and whether appropriate exemptions can be put in place.  This might include making the incentive available to those who can establish a medical incapacity to be vaccinated (as opposed to a person who merely chooses not to be vaccinated)

Key takeaways

In the absence of legislative change or a marked shift in caselaw, most Australian employers are unlikely to be able to meet the requirements for mandating vaccinations within their employee population. Similarly, the path for the collection of widespread information relating to employee vaccination status requires careful consideration and planning.

In this environment, incentivising employee vaccinations may provide some Australian employers with an opportunity to increase the rate of vaccination within their employee population.  However, before doing so employers should take the time to carefully work through the details of any such proposal (particular to consider what exemptions may need to be put in place), and ensure they undertake appropriate workplace consultation.

Lucinda Anderson
People + Culture Strategies