Our October bulletin set out the general avenues open to employees to challenge employer covid vaccination requirements. We were up front in stating the scope for challenge was relatively narrow.
At least in Queensland that scope is about to become even narrower. The Queensland Government has directed that any worker in healthcare (which is defined broadly) who enters, works in or performs services in a healthcare setting must be vaccinated by 15 December 2021. More broadly, the Queensland Government has indicated it will direct that, on or possibly before 17 December 2021, unvaccinated people will be unable to:
• attend hospitality venues such as hotels, pubs, clubs, taverns, bars, restaurants or cafes;
• visit vulnerable settings, including hospitals, residential aged care, disability care accommodation, and prisons (with some exceptions);
• attend indoor entertainment venues such as nightclubs, live music venues, karaoke bars, concerts, theatres or cinemas;
• attend outdoor entertainment activities such as sporting stadiums, theme parks or tourism experiences;
• attend festivals or Queensland Government owned galleries, museums or libraries;
• attend a wedding unless it is restricted to a maximum of 20 people.
This will apply not just to customers but also staff and even business owners. Requirements vary from state to state but government directions of this nature render irrelevant the question of whether an employer direction is reasonable or not, at least for the affected sectors. What should employers in these sectors do? There are some exceptions for workers in healthcare and reference should be made to the Queensland Government’s direction for further information. Further information about the broader restrictions can be accessed here. Events are obviously moving rapidly and requirements may change over time. However, as it stands, affected employers should have a conversation with employees to establish their vaccination status. If employees are not vaccinated or are not prepared to declare their status, then employers may, after consulting and advising employees of the consequences of their decision and providing a final opportunity to change their position:
1. withdraw duties from employees and place them on unpaid leave (allowing the employee to draw on their annual/long service leave entitlements if they have them) until such time as the Queensland Government requirements change; or
2. consider terminating employment on the basis that the employee is unable to fulfil the inherent requirements of their position.
For employers outside the affected sectors, the general guidance provided by the Fair Work Ombudsman concerning reasonable directions (referred to in our last bulletin) will still apply (and privacy considerations should be kept in mind). Practically, consideration should be given to whether any adjustment can be made to accommodate unvaccinated employees. However, according to leading industrial law barrister Ian Neil SC (speaking at last weeks Australian Labour Law Association conference), a direction for employees to be vaccinated will “always be lawful” if a job inherently requires them “physically to be in positions or circumstances in which they could, if infected with COVID-19, transmit the virus to someone else” in the course of their work. This is becoming the general view (although there is little case law to rely on at this time). Consideration also needs to be given to not only the interests of the affected worker but the interests of other co workers and customers. For instance, there is potential for injury claims based on covid infections transmitted by unvaccinated persons and employers should consider their insurance position.
Whilst the possibility of an industrial dispute or unfair dismissal/discrimination based claim cannot be ruled out, most claims by unvaccinated employees would appear to have little prospect of success at this point. Unvaccinated employees will need to consider their position carefully. Circumstances may change however and rules may be relaxed if the pandemic subsides. Conversely, rules may be tightened if we see an increase in covid cases. These are of course general comments only and with particular application to Queensland. Please contact us if you would like any further information or help.