With Australia undertaking a COVID-19 vaccination program, RMB Lawyers Partner CHRIS SHEPPARD examines whether employers can force their employees to be vaccinated:
Australia is in the midst of rolling out its COVID-19 vaccination program. The three phases of the program commence with border workers, hotel quarantine staff, aged and disability care workers and front-line health workers.
By Phase 2B, the balance of the adult population will be in line for the vaccination. This raises the question as to whether an employer can lawfully make it mandatory for staff to have the vaccination.
Obviously, no employer wants their business to suffer an outbreak of the virus and the consequent business losses.
However, what is the legal position if an employee refuses to have the vaccination? Is that employee at risk of having their employment terminated?
At present, there is no legislation, government direction or case law on the issue. The Fair Work Ombudsman website states that: “In the current circumstances, the overwhelming majority of employers should assume that they won’t be able to require their employees to be vaccinated against the coronavirus.”
This is on the back of the fact that the Federal Government’s current policy is that having the vaccine is voluntary.
However, it does appear that there may be some circumstances in which an employer may require an employee to have the vaccine. The Fair Work Ombudsman website gives the following examples:
- where a public health order by a State Government requires certain workers to have it.
- where a workplace agreement or employment contract requires it.
- where it is lawful and reasonable.
Whether a mandatory vaccination is lawful and reasonable will need to be assessed on a case by case basis. However, it is envisaged that some examples may include in circumstances where it is necessary to comply with work health and safety laws, where employees may be interacting with those with a risk of being infected or where there is close contact with highly vulnerable people, such as the elderly.
At present, this issue is one which is well and truly in the grey zone and it will be interesting to watch how our employment laws and our decision-makers handle what is sure to be a contentious issue.
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