COVID-19: Civic Legal Client Update – 8 May 2021

Can an employer require its employees to be vaccinated against COVID-19?

27 Apr 2021

On 9 April 2021, the Fair Work Ombudsman indicated that the vast majority of employers should assume that they will be unable to make vaccinations mandatory for their employees.[1] Perhaps this kind of guidance will change as pandemic conditions change in time to come.

At the moment, the Australian Government is committed to providing all Australians with access to COVID-19 vaccines. While the Government aims to vaccinate as many Australians as possible, receiving a vaccination is currently voluntary.

However, on 19 April 2021, the Western Australian Government issued a media statement that it would make a public health order on 27 April 2021 that mandates COVID-19 vaccinations for hotel quarantine workers from 10 May 2021.[2] Employers and workers will need to comply with any public health orders that apply to them.[3] All employers should therefore keep themselves up to date with any new directives coming from Federal or State Governments.

'Keep a lookout for the decisions of the tribunals and the courts as the law evolves in this area.'

There may be some circumstances where an employer may require their employees to be vaccinated. It may be a case of keeping a lookout for the decisions of the tribunals and the courts as the law evolves in this area.

Some relevant factors to consider for now would include:

  1. whether a vaccination is required under a specific law (Federal or State);
  2. whether a vaccination is required under an enterprise agreement, other registered agreement or employment contract; and/or
  3. whether it would be reasonable and lawful to direct an employee to be vaccinated.

One example of the ‘reasonable and lawful’ criterion for an employer to apply occurred in the case of Barber v Goodstart Early Learning [2021] FWC 2156 decided by the Fair Work Commission on 20 April 2021.

In that case, the Fair Work Commission found that the worker’s failure to comply with the employer’s vaccination policy was a valid reason for her dismissal. The worker had refused to comply with the employer’s directive to get vaccinated against the flu. The employer argued that the management of biological hazards was necessary to protect its employees and the children under their care.

A mandatory vaccination policy may be deemed reasonable if employees interact with people who:

  1. have an elevated risk of being infected with COVID-19; or
  2. are vulnerable to the health implications of COVID-19.

To assist employers in determining the reasonableness of a vaccination policy, Safe Work Australia recommends that employers conduct a risk assessment based on the particular risks associated with an employer’s workplace and nature of the role.[4]  For example, it may be reasonable for employees working in aged care to be vaccinated as they are in close contact with people in vulnerable groups.

If a mandatory vaccination policy is deemed reasonable, it must also be lawful and comply with any relevant contract, award, agreement or law. This includes anti-discrimination law.

Employers and employees are encouraged to take a collaborative approach when discussing, planning for and facilitating COVID-19 vaccinations in the workplace.

Contact

For assistance with employment law, please contact:

Isabelle Kelland

Solicitor

ikelland@civiclegal.com.au

9200 4900

Disclaimer: This article contains references to and general summaries of the relevant law and does not constitute legal advice. The law may change and circumstances may differ from reader to reader. Therefore, you should seek legal advice for your specific circumstances. The law referred to in this publication is understood by Civic Legal as of publication date.
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References:

[1] The Fair Work Ombudsman COVID-19 Vaccinations and the Workplace (updated 9 April 2021).

COVID-19 vaccinations: workplace rights & obligations – Fair Work Ombudsman | Fair Work Ombudsman – Coronavirus

[2]https://www.mediastatements.wa.gov.au/Pages/McGowan/2021/04/COVID-19-vaccination-to-be-mandatory-for-hotel-quarantine-system.aspx

[3]The Fair Work Ombudsman COVID-19 Vaccinations and Workplace rights and obligations (updated 27 April 2021).

https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations#can-an-employer-require-an-employee-to-be-vaccinated

[4] Safe Work Australia, COVID-19 information for workplaces (Web Page, 23 February 2021) <https://www.safeworkaustralia.gov.au/covid-19-information-workplaces>.