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COVID-19 vaccinations and federal discrimination law

Rights Rights and Freedoms
Nurse giving COVID vaccination

The Australian Government’s policy is that coronavirus vaccinations are voluntary, although its aim is that as many Australians as possible choose to be vaccinated. Currently there are no ​federal public health orders or laws that make COVID-19 vaccination mandatory in Australia​, however, as of 31 March 2021 the state of Queensland has a public health order in place mandating vaccination for people in specific roles ('relevant employees')

It is possible that ​other states and territories will make health orders mandating vaccination for some industries or workers through public health orders in the coming weeks. Information about public health orders can be found on the Safe Work Australia website.

 

  • Q. Can it be unlawful discrimination for an employer to require  that its employees be vaccinated?

    If there is no specific law requiring that an employee be vaccinated, employers should be very 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. This is because there are medical reasons why a person may not be able to receive a COVID-19 vaccination, including because of protected attributes such as pregnancy or disability. For instance, at present, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists does not recommend the routine use of COVID-19 vaccines during pregnancy because pregnant and breastfeeding women were not included in clinical trials of the vaccines. COVID-19 vaccination may also be unsafe or contrary to medical advice for some people with disability. 

    The Sex Discrimination Act 1984 (Cth) (SDA) and the Disability Discrimination Act 1992 (Cth) (DDA) make it unlawful to discriminate on the grounds of pregnancy and disability 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.
      
    For people who are pregnant or have a disability, a blanket rule mandating COVID-19 vaccination is likely to engage the ‘indirect discrimination’ provisions in the SDA and the DDA. 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 their pregnancy or disability and it has the effect of disadvantaging them.

    Under both the SDA and the DDA, 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 requirement by an employer that its employees receive COVID-19 vaccinations is considered ‘reasonable’ by a court is likely to be highly fact dependent, taking into account the particular workplace and the employee’s individual circumstances. Factors that may be relevant under federal discrimination law include:
     

    • health and safety issues and the reasons advanced in favour of the mandatory COVID-19 vaccine requirement 
    • issues relating to the employee’s disability and 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 or health care)  
    • whether the employee interacts with people with an elevated risk of being infected with coronavirus (for example, 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. 
    • whether there are any alternative methods such as testing regimes, remote work, physical distancing or personal protective equipment that might reasonably achieve the employer’s objective without recourse to the mandatory COVID-19 vaccine requirement. 

    The SDA and the DDA explicitly place the burden of proving ‘reasonableness’ on the person who requires compliance with the requirement or condition — in this case, the employer.
      
    It is important to note that the DDA also creates an explicit duty to make ‘reasonable adjustments’ for people with disability, including at work. This is discussed in more detail below in the question about requiring employees to attend particular workplaces. Depending on the circumstances, however, the duty to make ‘reasonable adjustments’ may also be relevant to the question of whether it is lawful under the DDA for an employer to require that an employee with a disability receive a COVID-19 vaccination.  
     

  • Q. Can it be unlawful discrimination for an employer to require that its employees attend a particular workplace?

    There are reasons why some people might be particularly vulnerable to severe COVID-19 health impacts, including because of protected attributes such as age or disability. 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 discussed 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. Factors that may be relevant under federal discrimination law include:
     

    • 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, disability and 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 staff 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 and COVID-19 vaccinations 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. 

     
    With respect to disability discrimination, the Disability Discrimination Act 1992 (Cth) (DDA) creates an explicit duty to make ‘reasonable adjustments’ for people with disability, including at work.
     
    As defined in the DDA, ‘an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person’. Accordingly, ‘reasonable adjustments’ are all adjustments that do not impose an unjustifiable hardship on the person 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, requests to work remotely, at different times or on different shifts, or to have stricter control measures in place, may be considered reasonable adjustments. 
     

  • Q. Can it be unlawful discrimination for a business or service provider to refuse to provide goods, services or facilities to people who are not vaccinated?

    If there is no specific law requiring COVID-19 vaccination, businesses and service providers should be very 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. This is because there are medical reasons why a person may not be able to have a COVID–19 vaccination, including because of protected attributes such as pregnancy or disability. For instance, at present, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists does not recommend the routine use of COVID-19 vaccines during pregnancy because pregnant and breastfeeding women were not included in clinical trials of the vaccines. Vaccination may also be unsafe or contrary to medical advice for some people with disability.  

    The Sex Discrimination Act 1984 (Cth) (SDA) and the Disability Discrimination Act 1992 (Cth) (DDA) make it unlawful to discriminate on the grounds of pregnancy and disability 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.

    For people who are pregnant or have a disability, a blanket rule requiring COVID-19 vaccination as a condition of entry, or as a condition for the delivery or provision of goods, services or facilities, is likely to engage the ‘indirect discrimination’ provisions in the SDA and the DDA. 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 their pregnancy or disability and it has the effect of disadvantaging them.
     
    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 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. Factors that may be relevant under federal discrimination law include:

    • 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 
    • 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, aged care, disability care or health care) 
    • whether the business or service provider interacts with people who have an elevated risk of being infected with coronavirus (for example, 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. 
    • whether there are any alternative control methods such as testing regimes, remote work, physical distancing or personal protective equipment that might reasonably achieve the business/service provider’s objective without recourse to the condition. 

     
    The SDA and the DDA 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.
     

  • Q. Can it be unlawful discrimination for an employer to require that its employees be vaccinated if it goes against their religious beliefs?

    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.  

    However, 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 equal opportunity or anti-discrimination agency (their website addresses are at the bottom of this page).
     
     

  • Q. Can it be unlawful discrimination for an employer/business owner/service provider to require medical evidence as to why an employee or customer cannot be vaccinated?

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

Separate guidance has also been developed by the Fair Work Ombudsman and Safe Work Australia, explaining how COVID-19 vaccinations interact with workplace laws. Employers and employees should read this page in conjunction with those guidelines.