Can an employer require an employee to have a COVID-19 Vaccination?

The national roll out of COVID-19 vaccines has raised the question of whether an employer can force employees to be vaccinated.

Employers should not assume they can mandatorily require their employees to be vaccinated for COVID-19. If an employer makes being vaccinated a condition of starting or continuing employment, the employer must be able to demonstrate that this is a reasonable and lawful direction.

What is reasonable and lawful?  

To be lawful, the direction must comply with any terms set out in a contract, award, agreement or any State, Territory and Commonwealth laws.

If there are no such terms in a Contract, Award, Agreement, or Law that specifically require a COVID-19 vaccination, then whether the direction is lawful and reasonable depends on the circumstances of each case.

Employees must comply with lawful and reasonable directions, or face disciplinary action which could lead to a dismissal or termination of employment.  

Examples – Aged Care and Quarantine Workers

On 28 June 2021, the National Cabinet agreed to mandate that by mid-September 2021 working in an aged care facility was conditional upon having received a first dose ofCOVID-19 vaccine.  

New South Wales and Western Australia have also mandated that airport and quarantine workers must have received at least a first dose of the COVID-19 vaccine to work at airports or in a quarantine vaccination program. In Western Australia, quarantine centre workers include security guards, medical staff, hotel staff and even police officers. In Western Australia, quarantine centre workers include security guards, medical staff, hotel staff and even police officers.  

Grounds of refusal

Employees may have a legitimate reason for refusing vaccination. This can include where an employee suffers from a medical condition or because of the religious beliefs of the individual. An employee may be required to provide their employer with reasons and evidence exempting them from the vaccination.

Where an employee has given legitimate reasons to not be vaccinated, employers should consider alternative work arrangements before taking disciplinary action.

Avenue of redress

If an employer or employee has any issues with enforcing or complying with any such directions, the matter may be dealt with by the FairWork Commission.

The Fair Work Commission will assess the specific circumstances of employees and will examine the context of the workplace. Factors that could be considered include: the employee’s specific duties, work health and safety obligations, whether the vaccination would be inherent to the role of the employee and whether there is any guidance by government bodies.

Conclusion

At the time of this publication, no substantial decisions have made by tribunals or courts in relation to an employer forcing an employee to be COVID-19 vaccinated.

The law is likely to keep changing in this area as Australia continues to deal with the pandemic. If you are considering directing aCOVID-19 vaccination for employees, or if you have been given such a direction that you do not wish to follow, we recommend that you obtain legal advice.

 The matters raised in this article are not intended to provide employment law or individual legal advice. You should obtain individual advice based on your particular circumstances. If you require any further information about Employment law, please contact our Employment Law Team on (03) 9870 9870.

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