Businesses, employees and customers – COVID-19 vaccinations

Much debate has ensued regarding whether a business can require its employees or customers to receive a COVID-19 vaccination. Recently, Safe Work Australia provided guidance on employers’ duties under the Work Health and Safety Act 2011 (WHS Act) in relation to preventing COVID-19 risks in the workplace.

Duty of care owed to employees and customers

Safe Work Australia stated that businesses will most likely not be compelled to mandate COVID-19 vaccinations amongst employees or customers.

However, by virtue of section 19 of the WHS Act, employers are required to eliminate or minimise the risk of COVID-19 spreading throughout the workplace where ‘reasonably practicable’. To that end, Safe Work Australia expressed that businesses could satisfactorily fulfil this duty of care to their employees or customers without businesses requiring employees or customers receive the Covid-19 vaccination.

That said, in some circumstances, employees may be obliged to follow the direction of an employer to receive a vaccine (including a COVID-19 vaccine), if such direction is ‘lawful’ and ‘reasonable’ in all the circumstances: R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601. Additionally, Safe Work Australia expressed that a business may choose to require that customers provide proof of vaccination as a means of regulating who is permitted to enter the businesses’ premises.

However, businesses must be cautious to ensure that such directions to employees or terms with customers do not infringe upon the rights of employees or customers or inadvertently discriminate against employees or customers.

COVID-19 vaccination discrimination

The range of rights and freedoms that can be inadvertently infringed upon by COVID-19 workplace policies are extensive. Thus, businesses are advised to seek legal advice to ensure their COVID-19 workplace policies and proposed consumer terms are lawful.

Anti-Discrimination Law

Businesses must be particularly aware of anti-discrimination claims that may arise as a result of businesses taking adverse action against employees or customers for failing to follow COVID-19 workplace policies or breach purported consumer terms.

For example, dismissing an employee who refuses to receive a COVID-19 vaccination on medical grounds may lead to a claim of discrimination against an employer under the Disability Act 1992. Disability is defined broadly within that Act. Consequently, dismissing an employee who refuses to be vaccinated against COVID-19 on the basis of some disability including a medical condition or allergies may constitute disability discrimination against an employee. Similar factual circumstances may arise in respect of customers.

Moreover, businesses should be wary of inadvertently breaching the Anti-Discrimination Act 1977 (NSW) (AD Act). For example, by refusing entry to a business premises and thereby refusing goods or services to a woman who is pregnant (and who has not taken a COVID-19 vaccination because of her pregnancy), the business could arguably be inadvertently breaching section 33 of the AD Act. Similar arguments persist under the Commonwealth Sex Discrimination Act 1984 (Cth) and generally in respect of other protected grounds should there be a sufficient enough nexus between the refusal to vaccinate and the protected ground. To that end, it is worth noting that several jurisdictions throughout Australia protect against discrimination on religious grounds. Further,  section 351 of the Fair Work Act 2009 also prohibits employers from taking adverse action against employees due to religious beliefs.

Thus, businesses may have to analyse how COVID-19 workplace and consumer policies and terms interact with protected discrimination grounds. That is particularly so in circumstances where it may be technically difficult if not impossible for businesses to police and enforce the reasons why either employees or patrons and customers choose not to take a COVID-19 vaccine.

Commonwealth vaccine register and the Privacy Act

Businesses should avoid inadvertently unlawfully infringing upon the privacy of their employees or customers by implementing COVID-19 policies or terms.

The risk of breaching the privacy of an employee or customer could arise if an business requests that an employee or customer prove they have received a COVID-19 vaccination or misused information the business possessed in this regard. It is currently unclear how proof of vaccination could be presented to employers. However, a Commonwealth Bill (Australian Immunisation Register Amendment Reporting Bill 2020) which recently passed both houses and received royal assent amended the Australian Immunisation Register Act 2015 so that vaccination providers are obliged to report information regarding the administering of vaccinations to a centralised Commonwealth government register.

The register is being created with the intention of enabling Commonwealth assigned identifiers to access information regarding who has been vaccinated. If employers are granted access to this register or one comparable, employers must be weary of the subsequent privacy breach claims that may rise for the misuse of such information. For example, the information contained on the register may comprise employee records for the purposes of the Privacy Act 1988 (Cth) such that the employer business must comply with obligations under the Act including the Australian Privacy Principles. Thus, businesses should take steps to ensure that the privacy rights of their employees and customers are not undermined by COVID-19 workplace policies and consumer terms.

Ensuring Covid-19 Workplace Policies are Reasonable

Whether a workplace policy which directs employees to take a specific course of action is reasonable is wholly based on the circumstances and nature of the business being conducted. This has been tested in several cases which have recently gone before the Fair Work Commission.

In the case of Kieran Knight v One Key Resources (Mining) [2020] FWC 3324, the direction by an employer to require employees to complete a survey regarding their recent travels to overseas countries, at the beginning of the pandemic in Australia, was deemed lawful and reasonable. This was in light of the fact that the employer was not infringing upon any rights pertaining to employees under privacy law, and thus the direction was deemed lawful. The ‘reasonableness’ of the direction was satisfied as the employer’s request to complete the survey was based on its WHS duty of care to provide a safe workplace for employees, free of or minimising COVID-19 risks.

Interestingly, in the case of Glover v Ozcare [2021] FWC 231, the employer, which provides aged-care and disability services, dismissed an employee because she refused to be vaccinated against influenza for proven medical reasons. The employer had required all employees to receive the influenza vaccine as part of its strategy to combat COVID-19 risks in the workplace. The Fair Work Commission has already held that the employee was dismissed and could pursue her claim for unfair dismissal, although whether the dismissal was unfair is yet to be decided. When the case is ultimately decided, it will provide insightful commentary on what directions by employers are reasonable, particularly in circumstances where the nature of the business (aged-care and disability services) makes employees and clients more vulnerable to COVID-19 or medical risks.

Businesses are required to balance various competing legal obligations and risks. Accordingly, businesses should seek legal advice to ensure that their respective COVID-19 workplace policies or proposed consumer terms are lawful and will not inadvertently discriminate against employees or customers.