Refusing to serve customers who are not vaccinated is problematic.
There may be medical or health reasons why a customer is not vaccinated, such as due to underlying medical conditions, disability or pregnancy. There are also some age groups who are yet to be able to access the vaccine. A uniform policy which requires all customers to be vaccinated may contravene the provisions of the Sex Discrimination Act 1984 (Cth) (“SDA”), Disability Discrimination Act 2004 (Cth) (“DDA”) and Age Discrimination Act 2004 (Cth) (“ADA”).
The NSW Government is yet to release clear information in relation to the vaccination passport and whether that will allow businesses to refuse to serve customers. there should be some guidance and parameters released by the NSW Government about the vaccination passport in the coming weeks. Once those guidelines have been published, businesses will be better equipped to prepare COVID-19 Safety Plans which include guidelines relating to the vaccination and service of customers.
It is unlikely that a mandatory vaccine policy for customers will be determined to be reasonable and lawful, unless the current Public Health Orders change and guidance is provided by the NSW Government which specifies that customers must be vaccinated to attend retail or service businesses.
Blanket policies requiring all staff to be vaccinated could be deemed to be unlawful, especially in circumstances where a staff member has an underlying health condition or disability that prevents them from being vaccinated. The Fair Work Ombudsman (“FWO”), the Australian Human Rights Commission (“AHRC”) and Safe Work NSW have cautioned employers about imposing mandatory COVID-19 vaccination policies and conditions on staff. They have advised that mandatory vaccination of staff should be considered on a case by case basis. The AHRC and FWO have published guidelines in relation to the reasonableness and lawfulness of an employer direction to staff to be vaccinated, as outlined below:
- The existence and scope of any relevant public health orders. In NSW, there is currently no public health order in relation to the mandatory vaccination of retail or service workers.
- Health and safety issues and the reasons advanced in favour of the mandatory COVID-19 vaccine requirement.
- Issues relating to an employee’s disability or medical condition. As stated above, this needs to be considered on a case by case basis with individual employees who may have a legitimate reason to refuse the vaccine based on their own underlying health conditions and disabilities. It is lawful for an employer to request evidence in relation to these conditions and disabilities pursuant to the DDA.
- The nature and extent of the disadvantage resulting from the imposition or proposed imposition of the mandatory COVID-19 vaccine requirement. Consideration again needs to be had here in relation to any health conditions or disabilities suffered by employees in relation to their refusal to be vaccinated.
- The feasibility of overcoming or mitigating any disadvantage to the employee by the mandatory COVID-19 vaccine requirement. This may include provisions for the employee to work off-site or with protective equipment if they are unable to be vaccinated.
- Whether the disadvantage to the employee is proportionate to the result sought by the employer. This needs to be considered on a case by case basis.
- The nature of the work performed by the employee. The FWO have produced “tiers” in relation to work performed. The FWO have said that for employees performing Tier 3 work:
- where no community transmission of coronavirus has occurred for some time in the area where the employer is located, a direction to employees to be vaccinated is in most cases less likely to be reasonable
- where community transmission of COVID-19 is occurring in an area, and an employer is operating a workplace in that area that needs to remain open to provide essential goods and services, a direction to employees to receive a vaccination is more likely to be reasonable.
- Whether the employee has close contact with people who are most vulnerable to severe COVID-19 health impacts. For example, people working in aged care, disability care, health care, people over 60 or people with respiratory conditions.
- Whether the employee interacts with people with an elevated risk of being infected with COVID-19. For example, medical professionals, flight crew, border control or hotel quarantine workers.
- The incidence, severity and distribution of COVID-19 in the areas where the work is undertaken.
- The availability of the vaccine. This is not currently an issue as supply of the vaccine is available.
- Advice from medical and work health and safety bodies such as the Australian Health Protection Principal Committee and Safe Work Australia about COVID-19 and COVID-19 vaccinations at the relevant times, including duties owed by employers to staff and customers under work health and safety laws.
- Whether there are any alternative methods that might reasonably achieve the employer’s objective without recourse to the mandatory COVID-19 vaccine requirement, such as:
- testing regimes
- remote work
- physical distancing
- personal protective equipment.
Therefore, it is important that the above considerations are taken into account when determining whether to impose a mandatory vaccine policy.
Businesses may require their staff to be vaccinated if it is reasonably practicable to do so and in circumstance where such direction is lawful and does not contravene discrimination legislation. Accordingly, rather than a blanket policy requiring all employees to be vaccinated, you may consider implementing a policy that considers the circumstances of its staff on a case by case basis, to allow current or prospective staff with underlying health conditions, disabilities, pregnant staff and young persons to continue or obtain work if they are unvaccinated. An employer is entitled to request evidence in relation to these medical conditions and disabilities, without contravening discrimination legislation.
Employers may consider amending their contracts of employment in relation to vaccination, but any policy/contract clause needs to contain an exemption in relation to workers who have a legitimate reason to refuse the vaccination and who can provide evidence of same.
Links to the latest publications from the FWO, AHRC and Safe Work NSW in relation to mandatory COVID-19 vaccinations, are below:
We would be happy to assist you further, should you decide to implement a mandatory vaccination policy/employment contract clause for existing and future staff. Should you wish to discuss further, please contact us. Our telephone number is (02) 8115 9820.
23 Sep 2021