Mandatory Vaccinations in the Workplace: Are they discriminatory?
Our Employment Practices Liability (EPL) team recently considered what is considered a “lawful and reasonable direction” when implementing mandatory vaccinations in the workplace as well as the question of employees’ privacy in this space. Another key issue that flows from this is the question of whether mandatory vaccinations are unlawfully discriminatory.
From the onset, it is important to note that there is a difference between lawful discrimination and unlawful discrimination. The Federal, State and Territory governments have rightfully enacted a range of anti-discrimination and equal opportunity laws that prohibit workplaces (among other areas) from engaging in unlawful discrimination. Discrimination can take many forms, but broadly speaking it can involve either direct discrimination; treating someone unfavourably or less favourably because of a protected attribute, or indirect discrimination; imposing a term or condition that prejudices people with particular protected attributes. It is important to note that for discrimination to be unlawful, the unfavourable treatment has to be connected to a protected attribute. The various anti-discrimination and equal opportunity laws set out quite clearly what are protected attributes. These include, but are not limited to age, race, gender identity, impairment or disability, marital status, sex, pregnancy, political belief, religion, and the associated characteristics of those attributes.
Putting a policy in the workplace requiring employees to be vaccinated amounts to the imposition of a term or condition. But is it unlawful? The natural effect of such a term or condition is that it will be discriminatory as its effect will result in differential treatment between those who are vaccinated and those who are not.
However, just because it is discriminatory, does not necessarily mean it is unlawful. As the law currently stands, a person’s vaccination status is not a protected attribute for the purpose of anti-discrimination and equal opportunity legislation. As such, requiring employees to be vaccinated does not amount to unlawful discrimination. It is for this reason that Federal, State and Territory governments, and some private companies absent of direct legislative backing have already mandated vaccinations for various industries and workforces.
However, there are certain circumstances wherein the imposition of such a condition could amount to unlawful discrimination. For example, if someone has a medical condition that prevents or excuses them from being vaccinated, it may be unlawful to then exclude that person from the workplace. In those circumstances, that person’s condition prevents them from complying with the direction to be vaccinated. That condition would be a protected attribute and, by extension, excluding the person from the workplace on those grounds might be unlawful. It is important to understand that it is the person’s medical condition that is the protected attributed here, not their decision to not get vaccinated.
There are exemptions that may allow an employer to discriminate against someone with a protected attribute for example, if it is done to protect the health and safety of that and other persons, however, before considering an exemption, employers should first explore whether there are any reasonable adjustments that can be made to accommodate the person’s condition. Whether adjustments are reasonable or appropriate will depend on the circumstances. The overarching principle however is that employers should strive to have workplaces that are free of unlawful discrimination. We recommend that employers get advice if they intend on relying on an exemption to exclude someone from the workplace who is unable to get the vaccination for legitimate medical reasons.
Now practically, and in view of our other recent insights relating to mandatory vaccinations, we leave you with the following recommendations relating to mandatory vaccinations and discrimination:
- make sure any direction or policy mandating vaccinations are compliant with anti-discrimination and equal opportunity legislation; and
- make sure any such direction or policy has adequate exemptions and flexibilities that accommodate people with protected attributes to avoid crossing the line between lawful and unlawful discrimination.
Looking for more information about mandatory COVID vaccinations in Australia? Check out our JabWatch page here.