As COVID-19 case numbers increase and vaccinations become more widely available, RMB Lawyers examines the legal right for employers to mandate vaccinations for their workforce.
The Federal Government has recently opened the door to employers mandating compulsory COVID-19 vaccinations for employees. However, it is important that employers are aware that implementing workplace policies requiring compulsory COVID-19 vaccinations remains a legal grey area and that they ultimately bear the liability for introducing such policies.
Employers can require their employees be vaccinated where a specific law requires vaccination, the requirement to be vaccinated is permitted by an employee’s employment contract, or where a direction for the employee to be vaccinated is lawful and reasonable.
Accordingly, the discretion for employers to mandate compulsory vaccinations for their employees often rests upon whether a direction to this effect is “lawful and reasonable”.
Whether a direction is lawful and reasonable is fact dependant and must be assessed on a case-by-case basis.
Lawful directions comply with the employment contract of an employee and the applicable Commonwealth, State or Territory laws.
The reasonableness of a direction is assessed having regard to a number of considerations, including the nature of the workplace or industry, the extent of community COVID-19 transmission in the location where the workplace is based, the nature of an employee’s role and the circumstances of individual employees.
Recently, the Fair Work Commission has taken the view that it is possible for employers to mandate vaccinations for their employees. In Barber v Goodstart Early Learning [2021] FWC 2156 the Fair Work Commission determined that the direction of a childcare provider to its employees requiring them to receive a mandatory influenza vaccination was lawful and reasonable. Key to this determination was the physical nature of childcare worker roles and the duty of care the employer held to children in its care. The refusal of the employee to be vaccinated in this instance was a valid reason for her dismissal.
While the weight of this judicial decision suggests that employers may be able to mandate vaccinations, policies requiring compulsory vaccination in less “high-risk” workplaces, industries and locations have nonetheless not yet been extensively tested before the Courts.
Consequently, it is unlikely that a “one size fits all” approach to compulsory vaccination will be seen as reasonable in workplaces, with employers needing to carefully consider factors such as health conditions preventing vaccination or other relevant personal circumstances of employees which may render vaccination unsuitable.
For this reason, we recommend that employers who wish to implement a compulsory COVID-19 vaccination policy in their workplaces seek legal advice. Your first step should be to contact our office to arrange a free consultation. You can contact us by by phone or our 'Ask a Question' tool on our website.