Friday, 12 February 2021

Can Employers Mandate the COVID-19 Vaccine?

Following Prime Minister Scott Morrison’s announcement of Australia’s COVID-19 vaccine national rollout strategy in the coming months, there have been indications that the vaccine will be available for those who choose to be vaccinated (so not mandated for the general population). The Health Minister has already confirmed that the COVID-19 vaccine will be available for free.

While the initial priority groups to be offered the COVID-19 vaccine have been announced by the Federal Government, including front-line quarantine and health care workers, as well as aged and disability staff, it is expected that further decisions will be made by state and territory health departments (which have the primary responsibility for workplace health and safety) as to which industries should have their employees vaccinated as part of their employment. The Victorian government previously legislated that health care and aged care workers needed to have the flu vaccination (see our previous article here).

At this stage it appears likely that the vaccine will be required in some ‘high-risk’ industries or professions. Once the vaccine is available to the general public, it appears more likely that employers will be able to strongly encourage their employees to be vaccinated rather than mandate it (unless in a profession or industry where it is legally required under legislation or Public Health Order).

While much still depends on the actions of the Government, consultation meetings between unions and employer groups appear to have expressed support for voluntary vaccinations and minimising the circumstances in which the vaccine is required in workplaces.

Lawful and Reasonable Directions

Employers have a responsibility under health and safety laws to provide so far as is reasonably practicable a safe working environment. At this stage in our view this does not extend to having the COVID-19 vaccine (although this may be subject to change). Similarly, employees owe a duty to their employer to take reasonable care for their own health and safety and the safety of those who may be affected by their acts or omissions in the workplace.

A recent unfair dismissal case in the Fair Work Commission (FWC) considered whether an employer (a childcare centre) could give a ‘lawful and reasonable’ direction to its employees to receive an influenza vaccination. Ultimately the case was dismissed on a jurisdictional ground. However, Deputy President Asbury noted that the mandatory vaccination policy of the childcare centre was:

…lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason”.

Consequently, if an employer seeks to mandate the COVID-19 vaccine in the workplace, the direction must be justified as ‘lawful and reasonable’. A direction is more likely to be considered to be lawful and reasonable in industries and professions where vaccination is a legal requirement.

Another important consideration is whether the COVID-19 vaccine is an inherent requirement of the employee’s role (which will likely be the case if in a profession or industry where it is required by legislation).

If however the COVID-19 vaccine is not an inherent requirement of an employee’s role, as the law stands it is highly unlikely that an employer would have a valid reason to dismiss an employee who refuses to be vaccinated.

Employers will also need to be mindful that there may be legal risks arising if an employee is subject to any adverse treatment in the workplace should they decide not to be vaccinated including under the general protections provisions of the Fair Work Act 2009 and equal opportunity/anti-discrimination legislation.

What should employers do?

Considerations surrounding COVID-19 vaccinations will be a major workplace and safety issue in 2021 for employers and their employees.

We will be monitoring whether there are any legislative changes or new Public Health Orders, or whether these issues are being considered by any courts and tribunals, and will provide updates as things develop.

We also expect there will be further guidance material for industries and businesses available over the coming weeks and months.

In the meantime, employers are encouraged to continue promotion of good hygiene practices and clear social distancing measures in the workplace in accordance with government requirements to assist in lowering the risk of the spread of COVID-19.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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