Can SA workplaces force staff to be vaccinated? Here’s the latest legal standpoint

Wondering if your employer could fire you if you don’t get vaccinated? We take a look at your rights and the rights of workplaces.

Can an employer fire a staffer if they don’t get the jab? What happens if a worker has a genuine reason for not being inoculated?

The Law Society of South Australia has some answers – But it’s not black and white.

There’s lots of factors to keep in mind and also some caveats.

While the situation with the pandemic is ever-changing, here is the Law Society of SA’s most up-to-date advice about mandating Covid-19 vaccinations in workplaces. We spoke to their president Rebecca Sandford:

What is the current state of play when it comes to workplaces mandating vaccinations?

Following a Commonwealth Government directive, states have introduced laws requiring residential aged care workers to be vaccinated. In SA, this direction was issued under the Emergency Management Act.

Since then, other jurisdictions have introduced broader vaccine mandates.

The Northern Territory, for example, has issued a direction mandating that workers across a range of public-facing industries have their first COVID-19 jab by November 12 and be fully vaccinated by Christmas Eve.

Victoria has also mandated that workers who are scheduled to work outside their home must be fully vaccinated by November 26.

In South Australia, all healthcare workers in public and private hospitals must have received at least one dose of a COVID-19 vaccine by November 1. The mandate, that came into effect in early October, applies to all clinicians, ambulance workers, allied health workers, cleaners, administrative and executive staff and students on placement, regardless of whether they work in a patient or a non-patient area.

They must also be able to show evidence of a booking to have a second dose within one month of receiving the first dose.

Those who provide a medical certificate can be exempt from the new rules. The direction follows national cabinet’s agreement at the start of October to mandate vaccines for healthcare workers.

For other businesses it is up to individual workplaces to decide whether to implement a mandatory vaccine policy depending on their operational requirements.

Under what circumstances can businesses legally mandate vaccines for workers?

All employers have legal obligations to create a safe workplace under the Work Health and Safety Act. Among an employer’s duty of care responsibilities is the obligation to provide and maintain “safe systems of work”.

Introducing a mandatory vaccine policy could be considered a legitimate measure to maintain a safe system of work, but there are caveats.

Is it reasonably practicable to implement a no-jab, no-work policy?

This really is the ultimate question, and if this whole issue could be distilled into one sentence, it would be this: Employers can legally implement a mandatory vaccine policy if it is considered a reasonable measure in the circumstances.

To evaluate whether a measure is reasonably practicable, an employer must consider things such as the degree of risk (eg the risk of contracting and transmitting COVID-19), the extent of the possible harm, and other available measures to protect the workforce.

With regards to mitigating the risk of COVID-19, vaccination is more invasive than other measures such as wearing a face mask and social distancing protocols, but it is also generally considered the most effective.

Another factor to consider is, depending on the nature of an employer’s operations, it might be reasonable to mandate the COVID-19 vaccine for employees working in some parts of an

employer’s business and not in other parts. For example, an employer may have part of its business where employees have frequent contact with members of the public and other parts of its business where employees undertake their work in a relatively isolated environment.

In light of current medical evidence about the effectiveness of immunisation, and government

support in favour of vaccination, it would be appear that implementing a mandatory vaccine policy may be considered a reasonable measure under law, subject to some conditions.

Can a worker be fired for refusing the vaccine?

There is no clear answer on this yet, and each case will turn on its own facts.

There have been some unfair dismissal decisions relating to flu vaccines that provide some guidance, but they are far from definitive. These cases include Glover v Ozcare, Kimber v Sapphire Coast Community Aged Care, and Barber v Goodstart Early Learning. In all these cases, the unfair dismissal claim failed.

One of the key takeaways from these decisions was that in each case, the requirement that the

employees be vaccinated was considered lawful and reasonable under the circumstances. However, they were all in the context of workplaces (aged care and child care) whose clientele were people regarded as vulnerable. 

A Supreme Court of NSW decision (Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320) on October 15 has also strengthened the position that vaccine mandates are valid, after the Court dismissed an appeal by 10 workers that public health orders requiring cohorts of employees to be vaccinated impinged on their rights to bodily integrity and freedom of movement.

A worker getting her Covid-19 Pfizer vaccination.

What if an employee has a genuine reason to not be vaccinated?

Any vaccination policy will need to have provisos to account for employees who may have legitimate reasons to not be vaccinated. A mandatory vaccine policy may be a lawful and reasonable measure, but an unconditional mandate is not likely to be lawful.

A lawful policy may be one that enables employees to remain unvaccinated if they have supporting medical evidence.

If an employee has provided legitimate medical evidence for not getting the vaccine, it is likely that it would be unlawful to terminate their employment purely on the basis of a refusal to be vaccinated.

Do employers have to consult with workers on vaccine mandates?

Employers that are planning to introduce a mandatory vaccine policy for employees should check what their applicable industrial instruments contain in relation to consultation obligations that need to be followed prior to any implementation of such a policy.

This is because a vaccine mandate in the workforce would be considered a “major workplace

change” under standard Award and enterprise agreement consultation clauses, and employers will therefore have a legal obligation to engage in consultation with workers about such a change.

BREAKING 📸the state's roadmap out of #covid19 restrictions. Premier @marshall_steven says we're in a race against time to get vaccinated #Adelaide#coronaviruspic.twitter.com/K85DEHk2xz

— Andrew Hough (@andrew_hough) October 26, 2021

So the answer to the question of whether you can get fired for not getting vaccinated is likely ‘yes’?

Although it is early days, the signs tend to point towards vaccine mandates in workplaces being lawful, and it is likely that we will see more workplaces introduce compulsory COVID-19 vaccination policies.

We may also see more public health orders mandating vaccines for a broader section of the workforce.

With increased implementation of mandatory workplace vaccination policies, it is also expected that there will be more challenges to the legitimacy of such vaccine mandates and other public health measures, including, possibly, on constitutional grounds, and such cases may clarify the lawfulness of various health orders.