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In light of Australia’s impending roll-out of a COVID-19 vaccine in March, a major consideration for employers will be whether they can direct their employees to have the vaccine.
Employers are also unsure if they will have the power to terminate or restrict their employees from entering the workplace if they refuse to take the vaccine.
If working from home arrangements, social distancing measures and regular cleaning practices cannot manage this risk alone, then the vaccination will need to be considered as part of the solution. Whether this can be mandated depends on the specific circumstances of individual employees.
In the absence of a government or Health Department directive, employers will generally not have an unfettered right to require their employees to be vaccinated against COVID-19.
However, at common law, employees are obliged to comply with the lawful and reasonable directions of their employer. The critical issue for determining whether a direction to receive the vaccine is “lawful and reasonable” will depend on several considerations, such as the nature of work that needs to be performed, the nature of clients/customers and other stakeholders, whether employees can work remotely, the local health advice and requirements of the Government at that point in time.
Does the industry make a difference?
The possibility of employers being able to enforce a mandatory COVID-19 vaccine for their workplace will also vary depending on the industry that they work in. People who work in health or with vulnerable members of the community might be viewed as more of a risk, and so as a result a requirement that they have the vaccine is likely to be considered lawful and reasonable to ensure their health and safety, and that of others around them, in their workplace. For example, it is already a requirement for people working in aged care facilities to receive the flu vaccination, and there has been considerable discussion that this same requirement should apply for the COVID-19 vaccine. There has also been discussion that it should be mandatory for hotel quarantine workers to receive the vaccine due to their exposure to returned travellers.
There is also the possibility that it could be a Government requirement for employees in certain sectors to receive the vaccine. However, the situation is likely to be very different for those workplaces where the risk of infection is low.
Watch this space
With the Morrison Government hoping to administer the vaccination as early as March, this issue is sure to surface in many workplaces. Industrial Relations Minister, Christian Porter, says that talks will soon start with employers and unions to work through the complex legal and workplace safety issues surrounding the roll-out of COVID-19 vaccines.
Porter has said “preliminary discussions” had already begun, “with key unions and employers from the health and aged care sectors about a vaccine roll-out and wider consultation with stakeholders from the broader economy will begin soon, with the first meeting scheduled for 1st February 2021. There are a number of complex legal issues that need to be considered in preparation for the roll-out of a vaccination, some of which will be unique to particular workplaces and it should be noted that the largest area of legal responsibility for workplace safety is fundamentally a state responsibility.”
This article was written by Kim Hodge and contributed to by Nicola Martin.