Month: September 2021

If there is no specific law requiring that a person be vaccinated, employers should be cautious about imposing mandatory COVID-19 vaccination policies or conditions on staff. The need for vaccination should be assessed on a case-by-case basis, taking into account the nature of the workplace and the individual circumstances of each employee.

There are medical reasons why some people may not be able to receive a COVID-19 vaccination, or may choose not to in their circumstances, including because of protected attributes such pregnancy or disability. Additionally, at present, many younger Australians have not been eligible for certain COVID-19 vaccinations at all, or for shorter periods of time than older Australians.

The Sex Discrimination Act 1984 (Cth) (SDA), the Disability Discrimination Act 1992 (Cth) (DDA) and the Age Discrimination Act 2004 (Cth) (ADA) make it unlawful to discriminate on the grounds of pregnancy, disability and age in many areas of public life, including in employment. ‘Disability’ is broadly defined in the DDA and includes past, present and future disabilities, as well as imputed disabilities.

A strict rule or condition that mandates COVID-19 vaccinations for all staff, including people with certain disabilities, medical conditions or who are pregnant, may engage the ‘indirect discrimination’ provisions in the SDA, the DDA and the ADA.

Indirect discrimination and reasonableness

In broad terms, indirect discrimination occurs when a person is required to comply with a general requirement or condition (such as mandatory COVID-19 vaccinations), and they are unable to do so because of a protected attribute, for example because of their disability, and it has the effect of disadvantaging them.

Under the SDA, the DDA, and the ADA indirect discrimination may occur if an employer requires, or proposes to require, that a person comply with a general requirement or condition.

This means that an employer does not need to seek to enforce a mandatory COVID-19 vaccination policy (for example, by way of termination, suspension, or performance management) to engage in unlawful discrimination. It is a defence to a claim of indirect discrimination if the condition or requirement is shown to be ‘reasonable’ in the circumstances of the case.

Whether a court considers it ‘reasonable’ for an employer to mandate COVID-19 vaccinations is likely to be highly fact dependent, considering the workplace and the employee’s individual circumstances. It may consider information such as:

• The existence and scope of any relevant public health orders.
• 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.
• The nature and extent of the disadvantage resulting from the imposition or proposed imposition of the mandatory COVID-19 vaccine requirement.
• The feasibility of overcoming or mitigating any disadvantage to the employee by the mandatory COVID-19 vaccine requirement.
• Whether the disadvantage to the employee is proportionate to the result sought by the employer.
• The nature of the work performed by the employee.
• 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.
• 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.

The SDA, the DDA, the ADA explicitly place the burden of proving ‘reasonableness’ on the person who requires compliance with the requirement or condition — in this case, the employer.

The duty to provide reasonable adjustments

The DDA also creates an explicit duty to make ‘reasonable adjustments’ for people with disability, including at work. Depending on the circumstances of the case, a ‘reasonable adjustment’ may include exempting workers with disabilities, who have a medical reason for not being vaccinated, from a general rule requiring COVID-19 vaccination. Employers are not required to make adjustments for people with disability if the adjustments would impose an unjustifiable hardship on them. Unjustifiable hardship is a high test, and it recognises that some hardship on businesses and employers may be needed and justifiable to reduce discrimination against people with disability.

What about ‘the inherent requirements’ of a role and other exemptions?

In responding to a complaint of disability discrimination, an employer may seek to rely upon the defence of ‘the inherent requirements’ of the role. Under the DDA, it is lawful for an employer to discriminate against a person on the ground of the person’s disability if the person is unable to carry out the ‘inherent requirements’ of a particular job or would, in order to do so, require services or facilities that would impose an ‘unjustifiable hardship’ on the employer.

Depending on the circumstances of the case, it might be an ‘inherent requirement’ of a particular role that a person be vaccinated against COVID-19.

An employer may also seek to rely upon the ‘infectious diseases’ exemption in s 48 of the DDA. This provides that it is not unlawful to discriminate against a person if their disability is an infectious disease — or arguably the potential to acquire an infectious disease — and such discrimination is ‘reasonably necessary’ to protect public health.

In considering the term ‘reasonably necessary’, it is not likely to be sufficient that a discriminatory condition or policy is merely helpful, desirable or convenient in protecting public health.

There are reasons why some people might be particularly vulnerable to severe COVID-19 health impacts, including because of protected attributes such as pregnancy, disability or age. Depending on the nature of the work being performed, a blanket rule requiring all employees to attend a particular workplace may constitute indirect discrimination.

As outlined in the question above, whether a general requirement to attend a particular workplace is considered ‘reasonable’ by a court is likely to be highly fact dependent, taking into account the nature of the work and the employee’s individual circumstances. It may consider information such as:

• The reasons advanced in favour of the requirement to attend the workplace, including operational requirements and reasonable business grounds.
• Issues relating to the employee’s age, pregnancy, disability or medical condition.
• The nature of the work performed by the employee, whether it is outside or in a confined space, and associated risk of transmission.
• Whether the work involves interacting closely with other employees or with large numbers of people.
• Whether the employee is able to perform their work remotely, and if they have demonstrated the capacity to do so effectively.
• The incidence, severity and distribution of COVID-19 in the areas where work is undertaken.
• Advice from medical and work health and safety bodies such as the Australian Health Protection Principal Committee and Safe Work Australia about COVID-19 at the relevant times.
• Whether other control measures are available and in place in the workplace to minimise the risk of infection, so far as is reasonably practicable.

The duty to provide reasonable adjustments

The DDA also creates an explicit duty to make ‘reasonable adjustments’ for people with disability, including at work. Depending on the circumstances of the case, ‘reasonable adjustments’ may include allowing a person to work remotely, at different times or on different shifts, or to have stricter control measures in place.

Employers are not required to make adjustments for people with disability if the adjustments would impose an unjustifiable hardship on them. Unjustifiable hardship is a high test, and it recognises that some hardship on businesses and employers may be needed and justifiable to reduce discrimination against people with disability.

What about ‘the inherent requirements’ of the role defence?

In responding to a complaint of disability discrimination, an employer may seek to rely upon the defence of ‘the inherent requirements’ of the role. Under the DDA, it is lawful for an employer to discriminate against a person on the ground of the person’s disability if the person is unable to carry out the ‘inherent requirements’ of a particular job or would, in order to do so, require services or facilities that would impose an ‘unjustifiable hardship’ on the employer.

Depending on the circumstances of the case, it might be an ‘inherent requirement’ of a particular role that a person be able to work at a specific workplace.

If there is no specific law requiring COVID-19 vaccination, businesses and service providers should be cautious about imposing a blanket rule requiring vaccination as a condition of entry, or as a condition for the delivery or provision of goods, services or facilities. 

There are medical reasons why a person may not be able to receive a COVID-19 vaccination, or may choose not to in their circumstances, including because of protected attributes such pregnancy or disability. Additionally, at present, many younger Australians have not been eligible for particular COVID-19 vaccinations at all, or for shorter periods of time than older Australians.

The Sex Discrimination Act 1984 (Cth) (SDA), the Disability Discrimination Act 1992 (Cth) (DDA) and the Age Discrimination Act 2004 (Cth) (ADA) make it unlawful to discriminate on the grounds of pregnancy, disability and age in many areas of public life, including in the provision of goods, services and facilities.

‘Disability’ is broadly defined in the DDA and includes past, present and future disabilities, as well as imputed disabilities.

A strict rule or condition that requires COVID-19 vaccination as a condition of entry, or as a condition for the delivery or provision of goods, services or facilities, may engage the ‘indirect discrimination’ provisions in the SDA, the DDA and the ADA. 

Indirect discrimination and reasonableness

In broad terms, indirect discrimination occurs when a person is required to comply with a general requirement or condition (such as mandatory COVID-19 vaccinations), and they are unable to do so because of a protected attribute, for example because of their disability, and it has the effect of disadvantaging them.

Whether a court considers it ‘reasonable’ for a business or service provider to make COVID-19 vaccination a condition of entry, or a condition for the delivery or provision of goods, services or facilities is likely to be highly fact dependent, taking into account all the circumstances. It may consider information such as:

• The existence and scope of any relevant public health orders.
• The reasons advanced in favour of the COVID–19 vaccination condition, including operational requirements and reasonable business grounds.
• The nature of the goods/services/facilities being delivered. It can be expected that a court would strictly scrutinise the reasonableness of any measure that had the effect of seriously limiting or depriving people with disability of essential services.
• The physical space of the location (e.g. the shop) and associated risk of transmission.
• Issues relating to an employee’s disability, age, pregnancy or medical condition.
• The nature and extent of the disadvantage resulting from the imposition or proposed imposition of the COVID–19 vaccination condition.
• The feasibility of overcoming or mitigating any disadvantage to the person attempting to access goods/services/facilities by the COVID–19 vaccine condition.
• Whether the disadvantage to the person attempting to access goods/services/facilities is proportionate to the result sought by the business or service provider.
• Whether the business or service provider 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 business or service provider interacts with people who have an elevated risk of being infected with COVID-19. For example, medical professionals, flight crew, border control or hotel quarantine workers.
• Whether the business or service provider provides any opportunity for people who cannot be vaccinated to access its goods/services/facilities.
• The incidence, severity and distribution of COVID-19 in the areas where the business or service provider operates.
• The availability of the vaccine.
• 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 control methods that might reasonably achieve the business/ service provider’s objective without recourse to the condition, such as:
  • testing regimes
  • physical distancing
  • personal protective equipment.

The SDA, DDA and ADA explicitly place the burden of proving ‘reasonableness’ on the person who requires compliance with the requirement or condition — in this case, the business or service provider.

The duty to provide reasonable adjustments

The DDA requires businesses involved in the provision of goods and services to make ‘reasonable adjustments’ for people with disability. ‘Reasonable adjustments’ are all adjustments that do not impose an unjustifiable hardship on the business making the adjustments. Unjustifiable hardship is a high test, and it recognises that some hardship on businesses and employers may be needed and justifiable to reduce discrimination against people with disability.

Depending on the circumstances of the case, a ‘reasonable adjustment’ may include allowing unvaccinated customers into a shop or to receive services if they cannot receive a COVID-19 vaccination for medical reasons.

There are very limited avenues for people to make complaints about discrimination on the ground of religion or religious belief under federal discrimination law.

The Australian Human Rights Commission can accept complaints about discrimination in employment based on a person’s religion under the International Labour Organisation Convention (No 111) concerning Discrimination in respect of Employment and Occupation.

However, unlike discrimination complaints based on protected attributes such as race, sex, pregnancy, disability or age, these complaints cannot proceed to the Federal Circuit Court or the Federal Court for legal remedies.

Discrimination related to religion, religious conviction or religious activity may be unlawful under state and territory discrimination law. For further information on this topic, please seek legal advice or contact your local state or territory human rights, equal opportunity or anti-discrimination agency.

State and territory agencies

• Australian Capital Territory
• Northern Territory
• New South Wales 
• Queensland
• South Australia 
• Tasmania  
• Victoria 
• Western Australia
  

It is not unlawful under the Disability Discrimination Act 1992 (Cth) (DDA) or the Sex Discrimination Act 1984 (Cth) (SDA) for a person, such as an employer or a service provider, to request or require another person to provide information about a medical condition or pregnancy if the person making the request can demonstrate that it is not in connection with, or for the purpose of, unlawfully discriminating against the other person on the ground of disability.

However, the collection of personal information is also regulated by privacy laws. Any requirement for individuals to provide evidence of a medical reason for refusing a vaccination must be made in compliance with those laws.

You can find more information on Australia’s federal privacy laws on the website of the Office of the Australian Information Commissioner (OAIC).

The OAIC also provides links to relevant state and territory privacy laws and bodies.

Section 48 of the Disability Discrimination Act 1992 (Cth) (DDA) provides that it is not unlawful for a person to discriminate against another person on the basis of disability — either directly or indirectly — if the person’s disability is an infectious disease and the discrimination is reasonably necessary to protect public health.
The exemption in section 48 of the DDA clearly applies to people who have a disability that is an infectious disease. ‘Infectious disease’ is not defined in the DDA but it appears likely that it would apply to COVID-19, as it has been accepted as applying to other transmissible viruses such as HIV.

In considering the application of the section 48 exemption in relation to COVID-19, a court would need to consider whether the relevant conduct was ‘reasonably necessary’ to protect public health. The existence of the COVID-19 pandemic, and information and advice from public health bodies such as the Australian Health Protection Principal Committee, would likely be relevant to any consideration of what was ‘reasonably necessary’ conduct.

The exemption in section 48 of the DDA may also extend to people who are not vaccinated against COVID-19 (see Beattie (on behalf of Kiro and Lewis Beattie) v Maroochy Shire Council [1996] HREOCA 40 (20 December 1996)).

However, as judicial consideration has not been given to the application of section 48 of the DDA to unvaccinated people, it is strongly encouraged that anyone seeking to rely upon the exemption in relation to mandatory COVID-19 vaccinations seek legal advice.