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Now that a COVID-19 vaccine is available in Australia, several workplaces have started wondering whether they can make the vaccine mandatory for employees. Similarly, many employees are currently unsure as to what their rights are. Read on to find out more.
As at the date of this article, there are no general laws in Australia requiring employee vaccination against Covid-19. However, in some high-risk environments (such as aged care) employers can direct employees to vaccinate against common illnesses. Although the Australian government favours having as many Australians as possible vaccinated against COVID-19, the policy at this stage remains that vaccinations against COVID-19 are voluntary.
At this stage, enforcement of any Covid-19 vaccination direction is based on an assessment of the circumstances of both the workplace and the employee and will depend on the circumstances of the parties.
There are currently limited circumstances where an employer can require an employee to have a Covid-19 vaccination. The circumstances depend on the facts of each case and takes into consideration the nature of the workplace and each employee’s specific circumstances. Generally, at this present time, the employer is unable to solely rely on the Covid-19 pandemic to mandate the COVID-19 vaccinations.
Unless there is a specific law, enterprise agreements, or other valid employment contracts requiring vaccination, the employer cannot issue a direction for vaccination against Covid-19, unless it is reasonable to do so. Reasonableness will be assessed on a case-by-case basis and depends upon several factors, including:
1. the nature of the clients the employees interact with (for example, if there is regular interaction with high-risk groups, such as the elderly);
2. the nature of any other interaction with other relevant stakeholders;
3. the nature of the work that is being carried out (for example, employees working in hotel quarantine are generally at a higher-risk, than the general population of contracting and spreading Covid-19);
4. whether a safe workplace can be maintained without the employees having to receive the Covid-19 vaccination; and
5. any other related and/or relevant factors (for example, whether the employee has a legitimate reason for not being able to take the vaccine, such as a pre-existing medical condition).
Where there is an existing law or enforceable agreement in place requiring employees to be vaccinated and/or it is deemed reasonable for the employer to issue a direction for its employees to be vaccinated and an employee refuses to be vaccinated, then the employer may take disciplinary action against the employee, including terminating the employment.
It is important that employers ensure that any direction they introduce with respect to Covid-19 vaccinations in the workplace, is only introduced following obtaining tailored legal advice to assess the employer’s particular circumstances. Additionally, it is vital that employers ensure that they follow a fair process should they find themselves in a situation where they have mandated Covid-19 vaccinations in the workplace and have employees who are unwilling to comply with same.
Should an employee face disciplinary action which amounts to termination of employment, the employee may be able to bring an unfair dismissal claim against their employer and/or pursue their rights and entitlements under the Fair Work Act 2009.
It is vital that employers obtain tailored legal advice if they are considering making COVID-19 vaccinations mandatory in their workplace, or they operate in a COVID-19 high-risk environment. It is also vital for employees who work in a workplace which requires Covid-19 vaccinations to understand their legal rights and obligations.
The information on this page is intended as general advice only. For further information contact us on 02 9653 9466.