Project Description

Vaccinations and Drug Testing – with James Macken and Tony Chase

In this episode, we’re looking at what an employer can and can’t ask an employee to do with regard to the likes of vaccinations, drug and alcohol testing. It might seem like a perfectly good idea that could be relevant to your workplace, but who gets the final say and what happens when these issues arise?

Our host, Genevieve Jacobs is joined today by Canberra barrister James Macken, who works out of the Blackburn Chambers and Tony Chase, who currently works for the AMA and also has a long history in workplace relations.

For more resources, see our HR Breakfast Club resources below. If you have a topic that you would like us to discuss, we would be happy to hear from you, please contact us!

Some topics we cover:

  • Can you have a mandatory vaccination program in the workplace
  • Why is vaccination considered important in the workplace
  • Difference between the public and private sector regarding how you can enforce a vaccination program
  • Is it possible to prove that a workplace illness was as a result of being vaccinated, or not vaccinated
  • How to develop a reasonable vaccination policy
  • Developing a drug testing policy in the workplace
  • Dealing with a staff member that has tested positive in a drug test

Genevieve: Hello, this is the HR Breakfast Club Podcast. Genevieve Jacobs with you, thanks for joining me to look at issues from the world of work in Australia with a legal spin. We discuss HR issues in every episode. We have people who have rungs on the boards in the field and give you some ideas to think about in the workplace. Our website is hrbreakfastclub.com.au.

Please make contact with your questions, we can respond to those as well and keep you updated on recent developments in the field. In this episode, we’re looking at what an employer can and can’t ask an employee to do with regard to the likes of vaccinations, drug and alcohol testing. It might seem like a perfectly good idea that might be relevant to your workplace, but who gets the final say and what happens when these issues arise?

[music]

It’s flu season in winter Australia, many employers think it might be a good idea for their employees to be vaccinated. Surely, that saves everyone a lot of us in bother, either sickness and productivity or perhaps it’s drug and alcohol testing where an employer is concerned about impacts on work performance. What are the employment laws and the HR issues around this? What happens when an employee says, “Oh, can I really make me do this?”

I’m joined today by Canberra barrister James Macken, who works out of the Blackburn Chambers and Tony Chase, who currently works for the AMA and also has a long history in workplace relations. Hello to you both. Tony, let’s start with vaccination. There’s been some recent movement on this following the death of HK residents in Victoria. Now, what’s the federal government been saying should happen as a consequence?

Tony: Depending on the type of workplace, there is a requirement for employees to undertake reasonable vaccination protection as it were. We’re talking about the public sector, I take a Genevieve, here. That approach has been replicated across the various jurisdictions in Australia. The main issue here is the nature of the work that you do. There are some workplaces where, for example, you might be operating heavy machinery where there’s a risk to yourself and to others, should there be areas of judgment. In that particular context, there’s a requirement to undertake mandatory drug testing. One would say that having regard to the occupational health and safety legislation around Australia, it’s hard to argue that that is not a reasonable requirement.

Genevieve: James, what’s the legal status, though, of let’s say, a mandatory vaccination program?

James: Well, a mandatory vaccination program can only really be introduced or generally speaking through what’s called employment law and lawful and reasonable direction which might take the form of a written policy, for example. An employer can issue lawful and reasonable directions, but the direction has to be, apart from being lawful, obviously, it has to be reasonable. That’s where the argument comes in.

Considering the sort of physical elements of vaccination in isolation, generally speaking, if someone sticks something sharp into your body, that’s a crime and the only thing that makes it not a crime is the fact that you consent to it. When you’re given a direction to be vaccinated, you are being directed to consent to something that would otherwise be a crime and which is certainly physically and personally invasive, it’s a pretty serious business.

Generally speaking, employees could quite legitimately say no, and they can give any reason. This is personal physical integrity that we’re talking about here, but where the employer has a particular reason that makes the requirement reasonable, it becomes much more difficult. Important, though, to bear in mind that it falls to the employer to establish the reasonableness of what’s being required.

Now, where, for example, and we’re talking earlier about H-care homes, in flu season, infectious employees coming into the workplace and perhaps not realizing that they’re infectious, or frankly, they can inadvertently kill people. This is [chuckles] an equally serious side of the coin, this is a serious issue. That’s what the debate and the discussion begins.

I would think that before employers started relying on the lawful rights an employee running the risk of saying no, it’s not reasonable and refusing and it would be a risk, there needs to be a dialogue about what’s to be achieved by the vaccination process. Perhaps a bit of advice from medicare as to whether it’s going to be effective to reduce the danger of infecting frail people with a dangerous virus, that sort of thing. A bit of dialogue, a bit of backward and forwards might help the process along now.

Genevieve: Now, a moment ago, Tony mentioned the difference between the public and the private sector. Is there a difference in how a mandatory vaccination program might be enforced if you are in, for example, the private sector?

James: Well, just looking at the public sector, on the one hand for the moment, the public sector always has the option of just passing an Act of Parliament, or it might be that they can make regulations under an existing act. Parliaments can do a lot through Acts of Parliament and can change the law like that. In the private sector, and also in the public sector, where you’re not relying on a separate Act of Parliament, you come back to this implied power that employers have to give lawful and reasonable directions, and conversely, the implied obligations that employees are under to obey lawful and reasonable directions. That’s where the debate on the icon and the area of disputation arises.

Genevieve: Tony, in practice, though, and let’s talk about private institutions or private organisations, does this go towards a duty of care on the part of private employers towards their patients who are also their customers?

Tony: Well, it does, Genevieve. For example, I work for the Australian Medical Association. We know that when you’ve got medical practitioners who are treating all the people. The likelihood of those doctors contracting the flu or some other infectious disease is accelerated. That is the context that they’re working in. Most doctors would agree and most health organisations in the public sector, in the first instance, have a policy where they recommend that inoculation vaccination should occur.

In the private sector, let’s put it this way. It would be less onerous, but if you’re running a medical practice and that it’s your principle, you do well to make sure that you are managing risk, not only in terms of your own business but in terms of the risk to your employees, particularly, every regard to the fact that most of those people will be dealing with patients, so the risk of infection is obviously enhanced.

Genevieve: James, just on the nature of risk, what risks does an employer take in that context? What would be the consequences in a legal sense for the employer from a flu outbreak from unvaccinated workers that were traceable?

James: It might be surprising to hear that here the employer may not face that much of a risk. The reason is this because if you’re talking about legal risk, then there are questions of proof. Someone would have to prove that the illness, the harm, the damage, possibly death was caused by that person there carrying this particular virus. Now, whether forensics is after creating that or not, is another matter.

Genevieve: James, could you explain to us what a reasonable direction is on the part of an employer?

James: An employer can make directions to employees if they relate to the scope of the employment if they relate to what the employee has been employed to do. Load that ship there with those commodities there and unload that ship and delegate be consigned to this important and what have you. That’s all pretty straightforward. There has to be a connection with employment.

In more recent years, employers have had occasion to give directions to employees about what they do out of hours and McManus and Scott-Charlton are a well-known case of an employee being directed not to contact another employee out of hours. In that case, the judge found that the direction, in this case, was reasonable, but clearly was a little bit reticent about coming to that conclusion.

Where employees are going to be directed about what they do out of working hours in their own time in their own home, the judge’s view was that that had to be carefully controlled and fully justified in every instance. A reasonable direction is one that relates to what a person is employed to do. You can see in the case of a carer in an aged care home how that has a pertinence or connection to what the person is employed to do.

If you took that very much further, say, into the GP’s surgery, it’s getting more tenuous. If you then try to transplant it to the pharmacy, again, still more tenuous and try to establish it in an ordinary retail outlet and at that point, I think it would be thus far and no further.

[chuckling]

Genevieve: Tony, so, let’s take it back to what could happen in the workplace surrounding this. How do employers develop a reasonable vaccination policy and how do they then direct its staff to comply with that?

Tony: The scope whereby an employer can direct or require an employee to undertake vaccination is very much dependent on the nature of the employment. In other words, if there’s a perceived risk to the employee, whereby it’s considered necessary for that person to undertake a vaccination program, then that’s defensible. The sorts of examples that James was talking about quite clearly and the GP is one that I’ve had some experience with, then it’s more difficult to sustain that reasonable direction argument.

Genevieve: James, in the case of vaccination, are there legitimate objections that an employee could make and what would they have to be able to prove or assert for those objections to be upheld? I guess I’m wondering whether vaccination status is a protected attribute under discrimination law.

James: It might be that there are religious groups that have an objection to this kind of procedure. We know some religions that do object to some medical procedures. That being the case, the employer would need to try to accommodate that religious conviction. I think that would be very much though the rare instance. Perhaps someone has a phobia about needles and that’s frankly, pretty readily dealt with through a bit of valley beforehand I would imagine. I would think that it really falls to the employer to first establish they have the power to do this. If they’ve established that, then the employee should cooperate to do, in my opinion.

Genevieve: Tony?

Tony: Well, as a matter of fact, there is a fairly recent example of this where an employee was able to establish that they had an allergy with respect to the type of vaccination that was being proposed. My understanding is that the 2018 vaccination regime is egg-based and some individuals are allergic to that. Whether or not the employee could sustain objection on those grounds, it would depend on whether there was an alternative available. The other point, to pick up James’s remark, is that I do know that in the United States there’s quite a lot of litigation going on at the moment in respect to religious objections to vaccination. There’s a lot of litigation going on right now.

Genevieve: Fascinating to see how you would prove all of that. That’s just one of those interestingly complex questions.

[music]

We’re in the midst of an HR Breakfast Club Podcast about vaccinations, about drug and alcohol testing, and what an employer can make you do or not to. Let’s move on to drug and alcohol testing. Tony, there are many workplaces where being affected by drugs and alcohol would be dangerous and risk to your employer. We’ve been talking about the healthcare sector, childcare, jobs that require operating precise or heavy equipment, where public safety is the question as in transport. What risks do employers face from affected workers?

Tony: From workers who may be at risk in terms of being adversely influenced by some form of drug-taking. The question for me in trying to address that question is, what obligations does an employee have to disclose in the first instance to an employer that they are under some sort of drug-taking regime, whether it be medical or otherwise? It would seem to me that the way to address that would be to have a policy that gives you some sort of power to address those questions in the workplace.

Taking a point that James made earlier on about invasions of privacy, that’s a significant issue. It seems to me that if the policy is introduced in a consultative way, then there’s every prospect that you’ll get cooperation from your employees. As we all know, you cannot willy-nilly introduce policies without going through a consultative process. As well as you have to make sure that in doing so that it’s reasonable having regard to the nature of the work that’s being undertaken.

Genevieve: Let’s just chase it out for a moment if we can, Tony. As an HR person, what are your first steps then in dealing with someone who appears not to have had an isolated incident where they’re affected by drugs or alcohol, but perhaps an ongoing issue, where you’ve got concerns that then go to performance in the workplace? What do you do?

Tony: Quite often, that information is reported by a third person and maybe an outsider or a member of the public. What you do in the first instance is to make sure that in initiating an interview that individual is aware of their rights. Most often, you’d need to make sure they have a third person to support them and explain to them the context, put the allegations to them directly, give them the opportunity to explain.

Basically, if you are confronted with a flat denial that they are engaged in drug-taking, which could potentially place the employer and others at risk, then I think you’re in a position where you need to give them a warning that there’s a reasonable apprehension that there’s some form of drug-taking being undertaken and that that may well result in a review of their employment. So that’s the process.

Genevieve: James, can you require drug and alcohol testing if you have a reasonable belief that someone workers being affected by drug or alcohol consumption? Just to go back to our previous discussion, does it make a difference or not whether it’s happening on or off-site?

James: There are two approaches to drug testing in the workplace. One is testing for whether or not someone who is perhaps in charge of heavy equipment is affected in terms of their performance by drugs or alcohol. The other is whether or not someone ever takes particularly illegal drugs at all. There are said to be those two different categories. There’s integrity testing, that is, do you ever take any amount of illegal drugs or even associate with anyone taking illegal drugs? On the other hand, there’s performance testing.

The first category is mainly about police, police and customs officers who it’s important that they not have any association whatsoever with illegal trafficking and illegal use of illegal drugs. There are tests that are able to be applied that can pick up to trillions of a gram of cocaine. They are so sensitive that they can pick up traces of cocaine that landed in your hair as you were walking past a gym where someone was doing weightlifting who had used cocaine a couple of days earlier. This is intensely sensitive testing.

That it seems to me has no relevance whatsoever outside of law enforcement. What we’re more generally concerned about is people who are coming to work and they’re still over the limit in terms of alcohol, because they took one on last night, or they’re perhaps habitually affected by drugs, nicotine, marijuana, cocaine, what have you. It’s that latter group that’s the more relevant issue. There’s been a frequent issue in cases in the commission where employers have used the former kind of testing that will pick up two picograms of an illegal substance.

What they’re really concerned about is affects on performance, which are picked up not by urine test or blood test but rather by a mouth swab. They’re using a too sensitive kind of test. They’re really acting as deputy sheriffs to the police in terms of enforcing community standards about drug use, and what have you. The problem with drug testing, the particular person who we’ve been told has been smoking dope around the back of the change rooms or what have you, the problem with that is that open to abuse, I suspect.

You can have a workforce where it’s a practice to have a drink at lunchtime, or a joint midway through the morning today, a different kind of smuggles at work. Where the person tested is the union delegate, say, or the troublemaker, or the woman in a man’s world, or that sort of thing, that’s where a more randomized testing regime is going to be safer for employers, I would think, than this targeted approach.

Genevieve: Tony, is an employer within their rights to dismiss someone if there’s a persistent pattern of being affected by drug or alcohol use no matter where that happens?

Tony: Well, I think you know, very much what James just said, you’ll need to establish the pattern and you’ll need to establish assuming, as we do, that there’s a good reason to initiate a regime such as we’re talking about. You need to establish a pattern and give the opportunity to the employee to rectify if there’s a problem. What I’m seeing through experience and also some of the cases I’ve been looking at is that if you’re going to go so far as to terminate someone’s employment, you’ll need to make sure that you’ve done your homework as an employer to make sure that you’re not susceptible to the allegation that you’re victimizing someone for some other reason.

I think I want to make sure that there’s a well-established pattern of adverse conduct, that the opportunity is being given to the employee to rectify, and that the matter is monitored over time. Once again, Genevieve, just to make the point that in saying that, it depends on the nature of the industry we’re talking about. If one is working in an office, then it’s less onerous in terms of policing the regime. Whereas clearly, if you’re operating dangerous equipment or you’re in a hospital setting or even a medical practice, then maybe the requirement is slightly higher. It’s very much a matter of context.

Genevieve: Just finally, James, another one of the concerns that you have about all the principles we’ve been discussing is how far they allow an employer to go and how much this– I guess we could describe this bracket creep operates when we giving people an entitlement to require vaccinations when we are saying there are circumstances in which it’s fine to do random drug and alcohol testing. What’s your worry about how far that principle extends?

James: Generally speaking, the right to require vaccinations and what have you, the right to impose a policy of random drug testing rests on this power to give lawful and reasonable directions. That’s a power that increasingly is used by employers to reach out beyond the workplace and after working house to control what people do in that context.

That’s where I have a particular reservation about it. You could think of it as the Friday evening principle. When you late work on generally speaking Friday night, there’s a peculiar skipping new step and what that’s about is you are no longer under the form of your boss. You’re no longer being sick of hours. No longer have to think about your presentation or whether or not you’re using bad language.

God forbid you can go, I’m a bit rude to you and I have as a shared abuse of passing motorists and no one’s got any come back to you. It’s just a good feeling not to be subject to that supervision, but for a number of different avenues, employers are reaching out to capture more productivity from employees and more capacity and more contribution and a deeper level of contribution. They calling it home with a problem and they’re sending emails on weekends and things like that. Now, this isn’t any grand conspiracy, there’s just the capacity to do that.

Employees increasingly cooperate in that regard by agreeing to accept that work provided laptop computer to take home, which no one in their right mind should ever do. A work provided mobile phone and on and on. There’s an increasing blurring of the lines between work and the rest of your life. The reason for which you go to work, which is to basically fund the fun times. I think there has to be real careful control over the expansion of employers powers to give directions and the reasonableness of directions that don’t have the pertinent to what you do during working hours when you’re at work, but rather reach beyond that to capture something else about you.

Genevieve: What a terrifically interesting conversation. Tony Chase and James Meghan, thank you very much indeed for your time.

James: Thank you.

Tony: Thanks, Genevieve.

Genevieve: Thanks for listening. This has been another HR Breakfast Club Podcast about familiar but vexing workplace issues. My guests have been barrister James Macken and the AMA’s Tony Chase. Look for us online at hrbreakfastclub.com.au. If you’d like to ask some questions, suggestions, ideas, or perhaps offer yourself up as tell it for the series, we’d love to hear from you.

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