Explainer: Mandatory vaccinations and COVID-19
Introduction
The COVID-19 pandemic is a global human rights crisis which has caused widespread illness and millions of deaths and prompted often severe restrictions from governments to protect public health.
COVID-19 vaccines have been shown to be very effective in reducing the risk of catching COVID-19, passing it on and getting seriously ill or dying from the disease.
An effective vaccination program in Australia and globally will not only save millions of lives, it will be critical to our ability to lift restrictions such as lockdowns.
As the COVID-19 vaccine program is rolled out across Australia, there have been calls to make the COVID-19 vaccine mandatory in certain settings, for example in high-risk workplaces or as a pre-condition to attending events or to international air travel.
The Federal Government has already made the COVID-19 vaccination mandatory for all residential aged care workers, with workers required to have received a first dose of a COVID-19 vaccine by 17 September 2021.
The issue of mandating vaccination for work or to access goods and services carries a range of human rights risks. This explainer goes through the relevant risks and recommends ways forward.
Vaccine access is critical to the right to health
The Australian Government has promised under international human rights law to protect the right to health. This means the government must progressively realise the highest attainable standard of physical and mental health.
Access to vaccines is an essential dimension of this right. Governments have human rights obligations to make vaccines available. High-vaccine uptake is critical to protecting public health in this pandemic.
Australia’s vaccine rollout has been slow
Australia’s vaccine rollout has been slow. Supply and access of the vaccine have been a major issue in Australia’s vaccination program, particularly for young people. In mid-August 2021, Australia was ranked 35 out of 38 of the OECD countries for the percentage of the population that are fully vaccinated. Key vulnerable groups have still not been fully vaccinated. For example, by early August 2021, fewer than half of Australia’s disability care residents were fully vaccinated and vaccination rates for Aboriginal and Torres Strait Islander people were below the national average, despite the Federal Government promising priority access. There have been delays in vaccinating people in other high-risk areas like immigration detention centres and prisons.
Vaccine supply issues are being addressed and the vaccine rollout is accelerating as more vaccine doses become available in Australia. Public surveys are showing that the percentage of people who are hesitant to get the vaccine is dropping. Combined with the experience to date from NSW in particular, it seems a target of 90% or higher of the adult population getting vaccinated is achievable.
There has been mixed and sometimes confusing health advice around the AstraZeneca vaccine
The AstraZeneca vaccine has an extremely rare but serious blood clotting side-effect. In Australia, the death rate from the side-effect is around 0.5 to 1 in every 1 million doses. In response to this risk, there has been mixed, changing and sometimes confusing health advice to the public.
For example, in June 2021, the Prime Minister announced that Australians under 60 could receive the AstraZeneca vaccine with informed consent, overruling the earlier health advice from the Australian Technical Advisory Group on Immunisation. Queensland’s Chief Health Officer rejected this position and said that people under the age of 40 should not be receiving AstraZeneca vaccine. These issues will have contributed to some people being hesitant to get the AstraZeneca vaccine. Australian Government information on the risk of side-effects from the AstraZeneca and other vaccines is here.
What mandatory vaccine policies are being considered?
There are many ways to promote vaccination coverage. Voluntary measures include ensuring effective supply through trusted distribution networks; establishing pop-up clinics in convenient locations or high-risk areas; ensuring access at convenient times; communication campaigns; ensuring information is available in different community languages and from trusted sources; providing paid leave so people aren’t out of pocket if they take time off work to get the vaccine or because of side-effects; and incentives such as payment or other rewards.
Involuntary or mandatory measures include; excluding unvaccinated people from certain goods and services; threatening disciplinary action or dismissal in workplace settings; financial disincentives; and compulsion under threat of use of force.
In Australia, governments, employers and businesses are considering requiring people to be vaccinated in certain circumstances. Different mandatory schemes have been introduced in some countries overseas.
In Australia, debate has focussed on two areas:
Should people be required to be vaccinated to work in certain workplaces?
Should certain goods and services only be available to people who are vaccinated? This has been referred to as a “vaccine passport” system.
Mandating vaccines creates human rights risks
The issue of mandating vaccines engages a wide range of human rights, including:
the right to life
the right to health
the right not be subjected to medical treatment without consent
the right to equality and non-discrimination
the right to privacy
freedom of religion.
As set out above, vaccines are saving lives and protecting health. Aside from the individual protection given by vaccination, vaccination also protects the life and health of others as it reduces the risk of COVID-19 being transmitted. The more people that are vaccinated, the less the risk to life and health of others.
The issue of mandating vaccines is also relevant to other human rights, like freedom of movement and the rights to education and work, which are restricted when governments introduce measures like lockdowns to protect health. The more people that are vaccinated, the less governments will need to rely on lockdowns and other measures to protect health.
However, there are a range of reasons why people may not want to get vaccinated, including:
genuine medical reasons as to why vaccination may pose particular risks;
religious reasons for not wanting to be vaccinated;
worry about side-effects;
preference for a particular vaccine (eg: Pfizer); or
other reasons.
Human rights principles provide helpful ways to work through these issues.
Human rights are not comprehensively protected in Australia
Unfortunately, while Australia has promised to protect human rights under international law, there is no comprehensive protection of human rights under Australian law. Australia has no Charter of Human Rights.
However, a range of important human rights are expressly protected under Charters of Human Rights that exist in Victoria, Queensland and the ACT. Anti-discrimination laws across Australia also provide important protection against discrimination on certain grounds.
When is it reasonable to restrict rights?
Under Charters of Human Rights, human rights may sometimes be restricted. In broad terms, a right can be restricted if the restriction is genuinely necessary to achieve a legitimate purpose. The restriction must be reasonable and must be no more restrictive than necessary to achieve the purpose. In other words, any restriction on rights must be the lowest level needed to get the job done.
This simple test provides a powerful way of assessing whether it is reasonable to mandate vaccines in different circumstances.
Do workplace vaccine mandates and vaccine passports breach human rights?
Requiring someone to be vaccinated as a condition of work or to access certain goods and services will restrict their rights. The key question is whether any restriction is reasonable and justified. This will depend on a range of factors including:
The availability of the vaccine. It is unfair to exclude people from work and goods and services if they cannot access the vaccine.
Evidence on the effectiveness of vaccines.
The type of work. For example, there are strong justifications for workplace mandates if the work is directly with people who are vulnerable to COVID-19, such as in aged, health and disability services, or if the work is with people who are likely to be infected with COVID-19, such as quarantine services or COVID-19 hospital wards. The justification is weak where work can be done remotely and there is little or no public interaction.
The type of goods and services. In particular, it is critical that people have easy ways of accessing essential goods and services.
The current level of COVID-19 risk and vaccination rates.
The availability of exceptions for people who have genuine health or religious reasons not to get vaccinated.
The effectiveness and use of alternative less restrictive measures. For example, if the best available public health evidence is that a certain level of vaccine coverage is needed to protect health, if that coverage can be achieved using voluntary means, it will be harder to justify broad mandatory measures. Relevant also is the potential to measures such as rapid testing to protect public health.
Ensuring that any vaccine passport system is accessible for people who do not have ready access to a computer, a smart phone or the internet or who have limited English.
The risk of other negative impacts of mandates. For example, there have been suggestions that mandating vaccines may lead to staff leaving industries where there are staff shortages, or that it may increase vaccine hesitancy.
Do workplace vaccine mandates and vaccine passports breach anti-discrimination or workplace laws?
Similar considerations will apply in assessing whether workplace vaccine mandates or vaccine passport systems breach Australian anti-discrimination laws. While anti-discrimination laws vary across Australia, they generally protect people from discrimination on the grounds of protected attributes such as age, pregnancy, religious belief, disability or medical condition.
Vaccination status is not a protected attribute under these laws. Accordingly, anti-discrimination laws do not protect against direct discrimination against someone for not being vaccinated. However, if someone’s reasons for not getting vaccinated are connected with a protected attribute, such as a disability or medical condition, mandating vaccinations in certain circumstances could be unlawful indirect discrimination if it not reasonable. For example, a requirement to be vaccinated to travel on public transport may amount to discrimination if it prohibited someone from travelling who had a medical condition which prevented them from getting vaccinated. What is reasonable and therefore lawful under anti-discrimination laws is likely to take into account factors like those set out in the section above.
Finally, under work health and safety laws in Australia, employers have a duty to eliminate, or if not possible reduce, so far as is reasonably practicable, the risk of exposure to COVID-19 in the workplace. This duty needs to be balanced against the requirement that employers can only issue lawful and reasonable directions to their staff. In some sectors like aged care, there may be specific laws or public health directions requiring vaccination. In the absence of these, employers must make sure that any directions to their workforce to get vaccinated or face disciplinary action are lawful and reasonable. What is reasonable is likely to take into account the factors above. The Fair Work Ombudsman has provided specific guidance on this, advising that vaccination mandates are more likely to be reasonable where employees are required to interact with people infected with COVID-19 or have close contact with people are particularly vulnerable.
If an employer acts unreasonably in imposing a vaccine mandate, they may face industrial disputation, unfair dismissal claims or discrimination claims.
Our view on workplace vaccine mandates and vaccine passports
Vaccines are critical to both saving lives and restoring freedom in this pandemic. However, workplace vaccine mandates and vaccine passports carry significant human rights risks.
There are strong justifications for exploring vaccine workplace mandates in high-risk areas like aged, disability or health care. Outside of those areas, governments and employers must tread very carefully when examining these issues.
Right now, the main focus should be on vaccine supply, access and promotion. Everyone who wants the vaccine should be provided with ready access to it and voluntary ways to promote vaccine uptake, including public communication campaigns and incentives, should be explored. Unions have been pushing for paid vaccination leave so that workers are supported to get vaccines and are not out of pocket.
Mandating vaccines for workers outside of high-risk areas should only be explored as a last resort once all reasonable voluntary efforts have been exhausted and only then if there is still a compelling public health reason and no less restrictive options available (such as rapid testing). Exceptions for people with genuine health or religious reasons must be considered.
Similarly, governments and businesses must tread very carefully when considering vaccine passport systems. It would be unfair to exclude people from goods and services if they cannot access the vaccine. There must be consideration of less restrictive measures such as rapid testing, exceptions for people with genuine health or religious reasons and ways to ensure access for people without ready access to technology.
More information
Australian Human Rights Commission: https://humanrights.gov.au/about/covid19-and-human-rights/covid-19-vaccinations-and-federal-discrimination-law and https://humanrights.gov.au/our-work/rights-and-freedoms/human-rights-considerations-vaccine-passports
Fair Work Ombudsman: https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations
Safe Work Australia: https://www.safeworkaustralia.gov.au/covid-19-information-workplaces/industry-information/general-industry-information/vaccination
This explainer is not legal advice
This publication was produced on 28 September 2021. It is an updated version of a publication produced on 19 August 2021. The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as legal advice. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have.