With the emergence of the COVID-19 booster vaccination over recent months, you may be wondering whether the booster can, or in fact should, be mandated in the workplace.

Just like when the primary COVID-19 vaccinations first entered the scene in 2020, the question has not yet been formally tested at law. While we watch this space and wait for developments to take place, there are some key considerations that employers should make at this early stage.

NSW Government Advice

The NSW Government provides the following key information about the booster:

• The booster is recommended but it is not mandatory (exceptions may apply)
• The booster may be taken by eligible persons, including persons:
  • over the age of 18 years, and
  • who have had their first and second vaccinations
• The booster should be received four months following the date of the second vaccination
• The booster is expected to strengthen the protection afforded by the first two vaccinations
• The booster will be free for everyone

At this time, the NSW Government has advised that it plans to roll out a booster program for residential aged care, people with disability and health care workers. Persons within these groups will likely already be due for their booster in accordance with the phased roll out of vaccinations in 2021 under Australia’s COVID-19 Vaccine National Rollout Strategy (the Strategy).

More information is available about the COVID-19 booster vaccinations, including vaccine types and side effects on the NSW Government website here.

Booster Mandate for NSW Department of Education school-based staff

Although the general advice is that the booster is not mandatory, on 10 January 2022, Premier Dominic Perrottet announced that the booster vaccination will become mandatory for all NSW Department of Education school-based staff.

Further detail about the mandate is not yet clear, nor has the mandate been confirmed through a public health order. All persons to whom the mandate will apply should watch this space to ensure timely compliance with the mandate when the further developments are announced.

So, who can mandate the booster?

You may recall from our prior article Can employers mandate the COVID-19 vaccine? that employers must apply the lawful and reasonable test to all directions made to employees to get a COVID-19 vaccination. Further, the reasonableness of a mandate must be assessed on a case-by-case basis, considering a range of factors set out in the above article.

It is our view that the same lawful and reasonable test will apply to any employer who wishes to mandate the booster for their employees or workplace.

How to mandate the booster

Employers who have an existing COVID-19 vaccination policy in effect should check the terms of the policy to determine if it has sufficient scope to apply to the booster. If it does not, the policy should be amended accordingly. Further guidance about how to word a policy in this respect is indicated below.

For those without a COVID-19 policy already in place, a policy can be implemented directing staff to receive the first two COVID-19 vaccinations and the booster. This is because a direction to get the booster without the two clinically requisite vaccinations will likely be legally unenforceable.

Before any such direction is made, employers must engage in genuine consultation with their staff about the decision to make the direction. This was clarified in the Full Bench of the Fair Work Commission’s decision late last year in the matter of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and BHP. In this matter, the court found that BHP’s pre-direction communications with workers ultimately fell short of its obligation to consult in accordance with the Work Health and Safety Act 2011 (NSW) (WHS Act), and therefore the direction was not a reasonable one as the test requires. To read more about this matter, please see here.

Crucially, it is our view that workplace COVID-19 policies should not at this time be drafted pre-emptively of any further vaccinations that may be rolled out in the future, beyond the present booster. Policies in respect of future vaccinations should be determined when more information is available about such vaccinations, and when the relevant health implications can be better understood.

Definition of ‘Fully Vaccinated’

Employers should be wary that the legal definition of a ‘fully vaccinated’ person does not include a person who has had their booster vaccination. According to Public Health (COVID-19 General) Order (No 2) 2021, a ‘fully vaccinated’ person is somebody who has only had their first and second COVID-19 vaccinations.

We anticipate that this is likely to cause some confusion if employers seek to rely on the phrase ‘fully vaccinated’ to try and mandate triple vaccination of their staff. Employers must therefore ensure that their COVID-19 policy is carefully worded in accordance with their true intentions. However, an employer should not be so specific within their policy as to direct employees to get a specific type of vaccination, as this may fail the test of reasonableness and be unenforceable.

We advise that COVID-19 policies are therefore prepared or reviewed by a legal professional to ensure proper drafting and the mitigation of such risks.

Implications of the Existing Government Strategy

Noting the mandate for NSW Department of Education school-based staff, it seems likely that the uptake of booster vaccinations will occur in waves according to the Strategy and industry mandates of 2020.

To recap on the Strategy and the phases of vaccination roll out in 2021, see here. You can also read more about the NSW Government industry mandates here.

We expect that the same groups represented by the above, such as health care workers and aged care workers, may be the first to experience issues and raise questions around booster mandates and implementation in the workplace.

Take Aways

• Employers can mandate the COVID-19 booster vaccination
• An employer direction to get the COVID-19 booster vaccination must be lawful and reasonable
• Employers must undertake genuine consultation with their staff before issuing a COVID-19 vaccination direction in accordance with their obligations under the WHS Act.
• Employers should be wary that the legal definition of ‘fully vaccinated’ does not include the booster vaccination
• Workplace COVID-19 policies and employment contracts should be drafted carefully by a legal professional to ensure enforceability

If you have any questions about the implementation a COVID-19 vaccination mandate in your workplace or require assistance drafting or amending your COVID-19 policy, please don’t hesitate to contact a member of Coleman Greig’s Employment Law team, who would be more than happy to assist you today.