The following article discusses the considerations for employers, in what is proving to be a challenging issue to manage.
The information contained in this article is correct at the time of writing (22 February) and does not constitute legal advice.
COVID-19 continues to impact the way we work and live, but the good news is that there are several vaccines on the horizon. Some employers may want to make the vaccine mandatory for all their employees, but is this legally possible?
Can an employer make the vaccine mandatory?
At this stage, the Australian Government has indicated that they have no intention of passing any laws or issuing Public Health Orders (PHOs) making COVID-19 vaccinations mandatory. The Government’s policy is that receiving a vaccination is voluntary, however it is aiming to have as many Australians vaccinated as possible.
The Federal, State and Territory Governments have agreed that PHOs will not be issued requiring COVID-19 vaccinations for any workers at this point and there are no PHOs requiring COVID-19 vaccinations currently.
If PHOs are made, employers and employees will need to comply with any orders applicable to them.
There are limited circumstances where an employer may require their employees to be vaccinated. This requirement heavily depends on the workplace and each employee’s individual circumstances.
Relevant factors that an employer should consider will include:
whether a specific law (such as a state or territory PHO) requires an employee to be vaccinated;
- whether an enterprise agreement, employment contract or other industrial instrument includes a provision about requiring vaccinations;
- if no law, industrial instrument or employment contract applies that requires vaccination, whether it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated (which is assessed on a case by case basis); and
- whether employees have a legitimate reason for not being vaccinated (e.g. a medical reason) and how protections for employees under anti-discrimination laws may apply.
Lawful and reasonable directions
Employers have the right to issue lawful and reasonable directions to their employees, and for an employee to comply with such directions.
Factors that make a direction to be vaccinated against COVID-19 lawful and reasonable will vary depending on the specific circumstances of the employer and employee, including:
- the nature of the employer’s industry;
- the work the employee is performing, and whether the employee has any legitimate reasons why they cannot have the vaccine;
- other controls that the employer has in place or could deploy to manage the risks associated with COVID-19.
- Some situations in which a direction may be more likely to be reasonable include where:
- employees interact with people with a higher risk of being infected (e.g. hotel quarantine);
- employees who have close contact with people who are considered vulnerable (e.g. aged care or health care).
Work Health and Safety
Employers have a duty under Work Health and Safety (WHS) laws to eliminate, or if that is not reasonably practicable, minimise the risk of exposure to COVID-19 in the workplace.
For an employer to meet their duties under WHS laws and minimise the risk of exposure to COVID-19 in their workplace, they must continue to apply all reasonably practicable COVID-19 control measures including physical distancing, good hand hygiene and regular cleaning.
Vaccinations should be considered as only one part of the WHS protocols that an employer has in place, and the COVID-19 vaccine should be assessed from a WHS perspective. Some factors to include in a WHS assessment include:
Undertaking a risk assessment of the workplace and workforce;
- Considering how the vaccine will help to manage those risks, taking into account vaccine availability and any evidence about the vaccine reducing the spread of COVID-19;
- Consultation with workers and health and safety representatives (HSRs) about COVID-19 and how the vaccine might impact the workplace; and
- Determining whether it is reasonably practicable to require vaccination in all the circumstances.
What if an employee refuses to be vaccinated, and can an employer require evidence about why they’ve refused?
If an employer has provided a lawful and reasonable direction to an employee to be vaccinated and an employee refuses to be vaccinated, the employer should ask the employee to explain their reasons for refusal.
If the employee has a legitimate reason for not being vaccinated (e.g. they have an existing medical condition), the employer and employee should consider whether there are any other options for working arrangements available.
If the direction to be vaccinated is lawful and reasonable, the employer could ask the employee to provide evidence for their refusal. There could be risks of breaching privacy laws if an employer directs an employee to provide evidence of a medical reason for refusing a vaccination.
Employers are encouraged to call Ai Group Workplace Advice if it is unclear whether a direction or the employee’s refusal is reasonable and before taking any disciplinary action.
Other issues to consider
If a business is considering making the COVID-19 vaccine mandatory, there are several risks which should be considered including:
- Unfair dismissal, if an employee is dismissed for refusing to be vaccinated; and
- Discrimination, if an employee refuses to be vaccinated due to medical or religious grounds.
These risks highlight that an employee’s reason for refusing to be vaccinated is critical and must be taken into account.
Employers should obtain specific advice about their business’ circumstances before deciding to mandate the vaccination.
If mandatory vaccination is not a viable business option, employers could consider encouraging employees to be vaccinated by allowing them time off to be vaccinated during work time.
Where to find further information
The Fair Work Ombudsman and Safe Work Australia have released guidance for employers on the COVID-19 vaccine. Employers are encouraged to check these websites regularly as further information may be released:
Fair Work Ombudsman – COVID-19 vaccinations & the workplace – This webpage includes a list of common questions on this topic.
Safe Work Australia – COVID-19 vaccines information - There is a dropdown box so that employers can filter information based on their industry.
Further advice or assistance
For further advice or assistance on this topic, or any workplace relations matter, contact the Ai Group Workplace Advice Line.
Call 1300 862 217 8.30 – 5.30pm AEDT Monday-Friday