There are many different issues raised by this question so there is no ‘one size fits all’ answer.

Guidance on mandating COVID-19 vaccinations from the Fair Work Ombudsman[1] and Safe Work Australia[2] has evolved considerably and we expect that to continue as the economy is re opened after lockdown.

There are now numerous state or territory public health orders requiring COVID-19 vaccinations for specified workers in various industries and workplace health and safety (WHS) law requires that employers meet their duties to eliminate (or if that is not reasonably practicable, minimise) the risk of COVID-19 in the workplace.

In the absence of an applicable public health order, how does an employer determine whether it is one of the few that may be able to require employees to be vaccinated?

Vaccinations in the workplace

Recent Fair Work Commission cases involving employees who were dismissed for refusing mandatory flu vaccinations have provided useful commentary but have not definitively answered the question.[3]

These decisions confirm the principle that employers can only issue a direction to employees if the direction is lawful and reasonable – and that is something which must be assessed on a case-by-case basis. Some of the relevant considerations include WHS obligations, public health orders, the nature of each employer’s workplace, the inherent requirements of each employee’s role, whether alternative arrangements are available, health considerations for each employee, vaccine access, the vulnerability of clients and customers and anti-discrimination obligations.

Requiring employees to be vaccinated will also raise other relevant considerations. For instance, there may be consultation obligations under applicable modern awards and enterprise agreements, and there are privacy considerations stemming from information disclosed and collected as part of the process.

What should employers do next?

As a starting point, any employer considering whether to issue a direction to be vaccinated against COVID-19 should conduct a risk assessment.

We then strongly encourage you to seek legal advice to ensure that you have considered all of the various obligations involved before the direction is issued, and certainly before any action is taken against any employees who may refuse vaccination.

While it is exciting to see that the Government’s COVID-19 vaccination program has now progressed after a slow start, employers should keep in mind that vaccination is unlikely to be a silver bullet against COVID-19. All other available risk-mitigation measures such as social distancing, face masks, working from home where possible and PPE are likely to remain a necessary feature of Australian workplaces for some time to come.

For further information, contact Tim Greenall.

 

[1] https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/health-and-safety-in-the-workplace-during-coronavirus/covid-19-vaccinations-and-the-workplace

[2] https://www.safeworkaustralia.gov.au/covid-19-information-workplaces/industry-information/general-industry-information/vaccination

[3] Kimber v Sapphire Coast Community Aged Care [2021] FWCFB 6015, Ms Nicole Maree Arnold v Good­start Ear­ly Learn­ing Lim­it­ed T/A Good­start Ear­ly Learn­ing [2020] FWC 6083 and Ms Maria Corazon Glover v Ozcare [2021] FWC 231

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