More Australian businesses are now planning to mandate vaccination among staff – or at least explore ways to kickstart the conversation with their workers. Employer-led vaccination programs come in direct response to the federal government's refusal, or reluctance, to enforce a nationwide blanket vaccination policy for the working population. 

Instead, Prime Minister Scott Morrison places the decision to mandate vaccines in the hands of employers – if state leaders haven't done so. But is this the best approach to achieving a more expansive vaccination drive?

"Businesses have a legal obligation to keep their workplaces safe and to eliminate or minimise so far as 'reasonably practicable' the risk of exposure to COVID-19," Morrison said.

But, in the absence of a state or territory public health order or a mutually agreed stipulation in the employment contract, an employer can mandate staff vaccinations through a "lawful and reasonable direction," Morrison added. 

The NSW government, for example, requires immunisation among healthcare workers, airport and quarantine staff and, more recently, teachers. But businesses in other sectors are currently left to formulate their own policies.

"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," the Prime Minister said.

'High-risk' sectors 

Employers, however, are sounding the alarm and urging governments to mandate immunisation in certain employee groups, such as manufacturing, construction, food processing, and retail workers, given the high transmission rate of the Delta variant.

Among the first sectors – backed by the national cabinet – to require inoculation is that of residential aged-care workers. 

"From 17 September 2021, residential aged-care workers must be vaccinated against COVID-19 as a condition of employment," the Department of Health said, providing additional guidance online. 

"Full-time, part-time and casual residential aged-care workers, volunteers engaged by a facility, and students on placement are required to receive a minimum first dose COVID-19 vaccine by this time."

The Business Council of Australia, however, is challenging state leaders to begin requiring inoculation among other high-risk workers. Governments, after all, have the power to roll out public health orders that would cover vaccination mandates, the council believes.

"We cannot leave this to individual employers who need to have a laser focus on keeping their people in jobs rather than seeking legal advice," said Jennifer Westacott, chief executive of the Business Council of Australia.

With greater resources at their disposal, state leaders can declare mandatory vaccinations that are "highly targeted to high-risk areas," especially if the failure to vaccinate certain classes of workers would "dramatically compromise our quarantine and containment systems," Westacott explained.

There is good reason for the public to let the government lead policy formulation, according to Joo-Cheong Tham, professor at the Melbourne Law School at the University of Melbourne.

"Public health orders give the community confidence that such decisions have been informed by expert advice, and that different stakeholders have had a chance to be heard (as employer groups and unions have had with the federal vaccine roll-out)," Tham said.

Exercising caution

Compliance experts, such as Safe Work Australia and the Fair Work Ombudsman, tread the issue of vaccination carefully. 

Consistent with the federal government's stance that vaccination is free and voluntary, the agencies maintain that employers cannot force workers to get the jab – unless public health orders instruct them to do so and that there is always a justifiable cause.

"In some cases, employers may be able to require their employees to be vaccinated against COVID-19," the Fair Work Ombudsman writes. 

However, the FWO also stresses that employers should exercise caution and seek their own legal advice.

With Australia's vaccination program in full swing, employers and employees are "encouraged to work together to find solutions that suit their individual needs and workplaces" through a "collaborative approach" that includes consultations, the FWO adds.

But while employers consider the right approach to getting workers protected, a more pressing question hounds the business community – the question of whether government leaders are keen to expand public health orders towards a wider vaccination effort.