The question that is currently at the forefront of many employers’ minds is whether they can direct their employees to take the COVID-19 vaccination.
In short, an employer can direct their employee to take the vaccine only where it is a lawful and reasonable direction. Whether a direction is lawful and reasonable has to be assessed on a case-by-case basis and will depend on the circumstances of the case such as:
- The industry within which the employer operates;
- The nature of the work the employee performs;
- The circumstances of clients and other stakeholders;
- The specific situation of the employee e.g. the employee’s religious beliefs, medical conditions etc;
- The advice given by the government and medical agencies at the applicable time; and
- Any other relevant circumstances.
An employer will have to demonstrate that the vaccination is an inherent requirement for the employee to safely perform their duties in order for the employer to meet their obligations under workplace health and safety legislation.
Employers have a duty to protect the health and safety of their own employees, and the health and safety of other people affected by their work.
For example, it may be a lawful and reasonable direction to require an employee to have the vaccination in circumstances where the employee works in “high risk” environments such as in the aged care sector with people who are more vulnerable to the health impacts of coronavirus infection (in order to safeguard the health of elderly individuals).
It may also be lawful and reasonable where employees interact with people with an elevated risk of being infected with coronavirus (e.g., employees working in hotel quarantine).
Employers should also ensure that they have processes in place where an employee refuses or is otherwise unable to comply with the direction. For example, the employer should ask the employee to explain their reasons for refusing the vaccination and, where possible, should consider permitting the employee to work remotely. It may be that employees have medical reasons for refusing to have the vaccine – in such situations the possibility of requiring an employee to be vaccinated would be more complicated.
The Fair Work Ombudsman has recently released guidance with respect to this issue and confirmed, in summary that:
- The overwhelming majority of employers should assume that they will not be able to require employees to be vaccinated against COVID-19;
- There are currently no laws or public health orders in Australia that specifically enable employers to require employees to be vaccinated against COVID-19;
- On its own, the pandemic does not automatically make it reasonable for an employer to mandate the vaccination;
- Employers can only direct employees to be vaccinated where the direction is lawful and reasonable (which will be assessed on a case by case basis); and
- It is unlikely that employees can refuse to come to work because, for instance, other employees had not been vaccinated.
Interestingly, the Fair Work Ombudsman has stated that in most cases it will be possible to require prospective employees to be vaccinated. The Fair Work Ombudsman has not explained its rationale for treating prospective employees and existing employees differently, but we assume it is considered to be more intrusive to require an existing employee to be vaccinated in circumstances where they have not previously consented to this. A prospective employee who is told they must be vaccinated to accept a role will have been forewarned of this requirement.
Safe Work Australia has confirmed that whilst employers have a duty to eliminate or if not possible, minimise the risk of exposure to COVID-19 in the workplace, it is unlikely that a requirement for employees to be vaccinated will be reasonably practicable. This is because, for example:
- at present, public health experts, such as the Australian Health Protection Principal Committee has not recommended a vaccine be made mandatory in any industries;
- there may not yet be a vaccine available for all employees;
- your workplace is ‘low risk’, for example, your business is in a town with no community transmission or no customer-facing roles, or
- some of your employees have medical reasons why they cannot be vaccinated.
It remains to be seen whether the Government will legislate to mandate that certain employees must be vaccinated. The Victorian Government has previously legislated to require frontline health workers to be vaccinated for the flu, so there is a precedent for this. If such a requirement becomes law, the question of whether the requirement is reasonable will be irrelevant. We will have to wait and see whether any such requirement eventuates.
It is necessary for employers to identify whether a direction to an employee to take the COVID-19 vaccination would be “lawful and reasonable” on a case by case basis. If you require assistance in making this assessment in your workplace, please contact EI Legal.
Need further help?
If you need further help on any of the matters raised in this article please contact EI Legal.