As Australia continues to fight COVID-19, businesses are seeking clarity on mandatory coronavirus vaccinations. This article explains the legal framework surrounding COVID-19 vaccinations in the workplace, and employers’ rights and obligations under the law.
Can an employer require an employee to be vaccinated?
Generally, receiving a vaccination is voluntary. However, whether employers can require employees to be vaccinated is a topical question and the answer is still evolving.
If vaccinations for employees are deemed mandatory in any public health orders and laws, this will of course be permitted. For example, the National Cabinet has mandated that all residential aged care workers must receive their first dose of a COVID-19 vaccine by mid-September 2021. Businesses should ensure they are aware of any state and federal health orders regarding mandatory vaccination in their industry.
In all other circumstances, whether an employer can require an employee to be vaccinated must be assessed on a case-by-case basis and employers should carefully consider the following:
1. Lawful and reasonable directions
Whether employers can require employees to be vaccinated will depend on whether the direction is lawful andreasonable based on the circumstances. A lawful direction is one that complies with any contract, award or agreement, and any applicable legislation.
Whether a direction is reasonable will depend largely on the nature of the work. Factors to consider when determining whether a direction to get vaccinated may be reasonable includes whether:
- employees work with vulnerable members of the community, such as in the aged care sector;
- employees work in a high-risk coronavirus environment, such as hotel quarantine locations; and/or
- how the virus is circulating and the availability of alternative health measures to prevent transmission.
There is scope to argue that the direction is reasonable to ensure a safe workplace, however this is not a blanket justification. Employers should consider whether the requirement to be vaccinated is necessary and proportionate to the risk the employees face. That is, whether an employee can perform the inherent requirements of their role without being vaccinated and if not, whether reasonable adjustments can be made to their role to enable them to do so. Additionally, the vaccination requirement should be straightforward, with no unreasonable deadlines or penalties.
2. Discrimination laws
In considering both federal and state discrimination laws, employers should consider the impact of mandatory vaccinations on employees with protected attributes, including disability, pregnancy, religious beliefs, medical exemptions, political beliefs and age (as many younger Australians have not been eligible for certain COVID-19 vaccinations).
A strict requirement for all employees to be vaccinated, including people with certain disabilities and medical conditions/exemptions, may be liable for ‘indirect discrimination’ under the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and the Age Discrimination Act 2004 (Cth).
Employers should consider consulting employees (as may be required under an applicable Enterprise Agreement or Modern Award) prior to making this direction. It may be beneficial to incentivise employees to get vaccinated in accordance with government recommendations by offering special leave and cash incentives.
- Employers may require employees to receive a COVID-19 vaccination in limited circumstances.
- Employers should ensure that any mandatory COVID-19 vaccination direction is lawful and reasonable.
- Employers should consider discrimination laws prior to making a mandatory COVID-19 vaccination direction.