Vexed: the question of mandatory vaccination in workplaces

These are just some of the diseases that we rarely hear about (except in articles like this) as a result of the success of vaccinations.

However, despite this history of science overcoming disease, people are still hesitant over the COVID-19 vaccination, and many fear the mandatory requirement for this vaccination in order to work.

The right to choose vs the greater good of community protection debate has formed a significant part of our recent social discourse around freedom as so many of us are locked down and dealing with vaccination decision-making.

It has caused a real crisis of values as we grapple with the liberalism our society is supposedly built upon versus the morality of protecting the most vulnerable members of our communities (and ourselves) from this disease.

However, perhaps what we think we are trying to choose between - freedom vs restriction - isn't so oppositional to our way of life.

Barrister Greg Barns QC reminds us in his article Why we shouldn't race to mandate vaccination, that mandatory vaccination wouldn't necessarily be opposed by liberalism.

He points out that we follow rules quite happily with regards to wearing seatbelts and the extensive OH&S laws in workplaces that we all adhere to without a second thought that restrict our freedom to choose how we act or do certain activities. These laws are not at odds with a liberalist society.

John Stuart Mills rather famously established The Harm Principle, which underpins liberalist justification for legal intervention in citizens' activities.

This principle states: "The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others."

This principle clearly bridges the gap between a liberalist determination to maintain individual freedoms and the moral need to protect our communities from this disease.

Prime Minister Scott Morrison has stated that: "Decisions to require COVID-19 vaccinations for employees will be a matter for individual business, taking into account their particular circumstances and their obligations under safety, anti-discrimination and privacy laws."

So, what is an employer's obligation here?

The model WHS laws (which need to be separately implemented by the Commonwealth, states and territories for them to be legally binding) articulate a duty to eliminate, or if that is not reasonably practicable, minimise the risk of exposure to COVID-19 in the workplace.

This suggests that a duty of care exists for employers to roll out mandatory vaccinations as part of a broader responsibility to instigate control measures and minimise the spread of COVID-19.

However, very few employers have announced mandatory COVID-19 vaccinations for their employees.

Despite the model WHS laws, Safe Work Australia's guidance states "most employers will not need to make vaccination mandatory" to meet their obligations, unless there are exceptions outlined by public health directions. These include specified classes of quarantine facilities, transport and airport workers in NSW for example.

The Fair Work Ombudsman also says that an employer must have a "compelling reason" before requiring vaccination of workers and that "the overwhelming majority of employers should assume that they can't require their employees to be vaccinated against coronavirus."

Joo-Cheong Tham, writing for The Conversation, highlighted two conditions that stand out here.

Firstly, when employees must interact with people with an elevated risk of being infected (e.g., hotel quarantine); and secondly, when employees must have close contact with people who are most vulnerable to the health impacts of catching COVID, e.g., if they work in aged care.

Tham concludes that mandatory vaccinations in workplaces are the exception rather than the rule.

Mandatory vaccinations in workplaces are nothing new, with healthcare providers requiring a number of vaccinations based on their role, for example.

But it is feeling a little different here because we haven't had the opportunity to agree to it before we applied for our jobs - it is potentially going to cause the loss of a job, rather than choosing not to apply for one if we don't want to vaccinate, which carries a greater individual burden.

Mandatory COVID-19 vaccinations in workplaces are a controversial topic.

Mill believed that there is a constant struggle between liberty and authority.

And while it seems that broad spectrum legal responsibility is restricted for such a mandate, we still hold a responsibility for individual morality to vaccinate if we can, to contribute to the protection of those around us.

Zoë Wundenberg is a careers consultant and un/employment advocate at impressability.com.au.

Twitter: @ZoeWundenberg