Can an employer force employees to be vaccinated against COVID 19?

March 2021

Can an employer force employees to be vaccinated against COVID 19?

Overview

Employers are required to ensure, as far as reasonably practicable, the health and safety of their employees in the workplace, under workplace health and safety laws.  Employers are also required to ensure that the health and safety of other people (clients, customers, suppliers, etc) are not put at risk from the work carried out by employees of their workplace.

This would include the employer being responsible for, as far as reasonably practicable, minimising the risk of employees being exposed to COVID 19 when in the workplace.

Two coronavirus vaccines have currently been approved by The Therapeutic Goods Association:

  • In January 2021, the COVID-19 vaccine COMIRNATY (by Pfizer Australia); and
  • In February 2021, the COVID-19 vaccine AstraZeneca.

With the rollout out beginning to occur, the Australian Government has indicated these vaccinations are currently voluntary and will be offered to everyone in Australia, over a period of time.  Safe Work Australia has also indicated the vaccinations would not be mandatory in Australian workplaces.  Therefore, it would be unlikely that the majority of employers will be able to maintain mandatory vaccinations as a condition of employment.

However, there are circumstances where an employer could introduce mandatory vaccinations to their workforce, although these are complex, unclear and require careful consideration of all factors and risks.

Key Takeaways

  1. Currently, it is safe for the majority of employers to assume that they are not able to mandate COVID 19 vaccinations for their employees.
  2. It is the Australian Government’s current policy that receiving the vaccination will be entirely voluntary (although they will campaign for as many people to be vaccinated as possible).
  3. There are no current laws or public health orders in Australia that allow an employer to require their employees to be vaccinated against COVID-19. Employers should stay informed on any changes implemented by Commonwealth, State and Territory governments, whilst continuing to identify and assess workplace risks, and implement or promote existing control measures such as quarantine for travellers, hand sanitising, social distancing and appropriate workplace cleaning.
  4. However, taking into account the employer’s particular workplace and an employee’s individual circumstances, there are limited situations where an employer may be able to require an employee to be vaccinated. Some factors that may warrant this are:
    • Whether a specific State or Territory law or public health order comes into place that requires an employee to be vaccinated;
    • Whether an employee’s employment contract, enterprise agreement or registered agreement includes any provision that would specifically require vaccinations;
    • Whether it would be lawful and reasonable for an employer to give a direction to their employees to be vaccinated.
  1. Careful consideration should be given as to whether it would be lawful and reasonable for an employer to introduce a requirement for employees to be vaccinated.
  2. Should an employer introduce a requirement for employees to be vaccinated, careful consideration should be given or legal advice obtained prior to taking any disciplinary action against an employee for refusal to comply or refusal to provide evidence in support.

Can an employer require an employee to be vaccinated?

Legislation/public health orders

As at the time of publication of this insight, there are no current Commonwealth, State or Territory laws or public health orders in Australia that allow an employer to introduce mandatory COVID-19 vaccinations for employees.

However, as the impacts of COVID 19 vaccine use across the world are more fully understood, and as the vaccine rollout continues across Australia, State and Territory governments may introduce new public health orders or pass laws requiring the vaccination of workers, particularly in high-risk industries such as health care, border security and meat processing, or workplaces where employees interact with large numbers of people in the course of carrying out their employment.

If any law or public health order is introduced by a State or Territory government, an employer and its employees will be required to comply.  For this reason, Employers should stay informed and up to date on any changes implemented by State and Territory governments, whilst continuing to identify and assess workplace risks, and implement or promote existing control measures in the workplace, such as quarantine for travellers, hand sanitising, social distancing and appropriate workplace cleaning.

In what circumstances can vaccination be made a requirement?

Agreements between employer and employee

An employer may have an employment contract, enterprise agreement or registered agreement with an employee that contains certain specific terms that relate to vaccinations.

An employer would need to carefully review those terms and determine whether they can be applied to the COVID 19 vaccine or relate only to, for example, influenza vaccinations.  Even where a term of a contract or agreement is found to apply to the COVID 19 vaccine, consideration will need to be given, or legal advice sought, as to whether that specific term complies with State or Territory anti-discrimination laws, as it will otherwise be unenforceable.

Lawfulness and reasonableness

It would be possible for an employer to require an employee to be vaccinated if that requirement is found to be lawful and reasonable, but such a decision would need to be assessed carefully on a case by case basis.

For the requirement to be lawful, it would need to comply with any contract or agreement between the employer and the employee, any relevant award, or any Commonwealth, State or Territory legislation (which could include anti-discrimination or workplace health and safety laws).

There are a range of considerations when making a determination that the requirement is reasonable, including whether the requirement is a practical measure used to eliminate or minimise risks in the workplace, under workplace health and safety laws.

For example, it would more likely be reasonable to require an employee to be vaccinated, in circumstances where that employee:

  • interacts with people who have an elevated risk of becoming infected (e.g. hotel quarantine, airports and border control);
  • may have close contact with people who are more vulnerable to being infected (e.g. hospitals and aged care facilities);
  • interact with large numbers of people during the course of their employment; or
  • work in an identified high-risk environment or industry (e.g. meat processing).

Additional considerations

Even in these circumstances, additional considerations will need to be made on a case by case basis, as an employee may have a legitimate reason for not being vaccinated (for example, a pre-existing medical condition, pregnancy, breastfeeding).

If employee’s reason for refusal is legitimate, the employer and employee should consider entering into discussions about alternative working arrangements, to determine whether there are other options available to continue the contract of employment, without being vaccinated.

What if an employee refuses the vaccination?

Evidence of refusal

If an employer’s requirement is not contrary to any agreement or contract, and an employee refuses a clear and repeated lawful and reasonable direction to be vaccinated, the employer should first ask their employee to explain their reasons for refusal.  The employee may have a legitimate reason for not being vaccinated, which is discussed above.

Should the employee refuse without providing a legitimate reason, an employer may request the employee provide evidence in support of their reason for refusal.

However, if the employer imposes a requirement that employees provide evidence to support their reason for refusal, this requirement must also be lawful and reasonable, in all of the circumstances, as any such direction may give rise to privacy issues.

If an employee refuses to provide the evidence required, and it is not clear whether the employer’s requirement for vaccination or the employee’s refusal to provide evidence is reasonable, an employer should carefully consider taking disciplinary action prior to seeking legal advice.

Disciplinary action

An employer may be able to take disciplinary action against an employee for refusing to be vaccinated, if that employee’s refusal is in breach of a specific State or Territory law, or in breach of a clear and repeated lawful and reasonable direction requiring vaccination.

Whether disciplinary action is reasonable will depend on all of the circumstances of the individual and the workplace.  In this regard, an employer should consider all terms, rights and obligations under any applicable:

  • employment contract
  • award;
  • enterprise agreement or other registered agreement;
  • workplace policy; or
  • public health order.

As employees have protections under the Fair Work Act with respect to termination (e.g. unfair dismissal, adverse action, discrimination), employers should carefully consider taking disciplinary action prior to seeking legal advice.

In addition, Fair Work has encouraged employers to consult with the employee to discuss the reasons why the employee does not wish to be vaccinated, and/or to discuss alternative options for continuation of their employment (depending on their individual workplace environment and the specific circumstances).

Can an employer require an employee to provide evidence of vaccination?

If an employer has made it a lawful and reasonable requirement for an employee to be vaccinated and the employee is amenable and complies, an employer may request the employee to provide evidence of the vaccination.

However, if the employer imposes a requirement that employees are to provide evidence of their vaccination, this requirement must also be lawful and reasonable in all of the circumstances, as any such direction may give rise to workplace privacy issues.

If an employee refuses to provide the evidence required, and it is not clear whether the employer’s requirement for vaccination or the employee’s refusal to provide evidence is reasonable, an employer should carefully consider taking disciplinary action prior to seeking legal advice.

Can an employee refuse to return to work if a colleague has not been vaccinated?

Currently, as there are no laws or public health orders in Australia that prevent an employee from attending their workplace, it is unlikely an employee could refuse to attend their workplace when a colleague or co-worker is not vaccinated.

This is because, again, vaccination is not currently mandatory in Australia and the majority of workplaces will not be in positions to mandate vaccinations.  In addition, the colleague or co-worker in question may have a legitimate health issue preventing them from being vaccinated.

In this situation, an employer can require an employee to continue attending the workplace, provided that requirements is lawful and reasonable, depending on all of the circumstances (including the employer’s workplace health and safety obligations).

If it is unclear whether the actions of the employee refusing to attend the workplace are lawful and reasonable, an employer should carefully consider taking disciplinary action prior to seeking legal advice.

Contact us

If you are an employer and need assistance or advice in dealing with this or other employment issues, contact us today.  We would be happy to assist you with specific advice on the best course of action available.

Call us by phone on (02) 8920 0475 or send us an email at mail@teneolaw.com.au.

Craig Higginbotham and Lynette Prichard
9 March 2021

 

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