Can employers mandate COVID-19 vaccinations?

In brief 3 min read

With Australia's COVID-19 vaccine rollout expected to commence in February, many employers are considering whether they can mandate vaccinations for employees entering their workplace.  

Key takeaways

• Employers have a right to issue lawful and reasonable directions to employees. They also have obligations to protect the health and safety of employees, contractors, customers and others who enter the workplace.
• Whether mandatory vaccination is 'reasonable' will depend on the specific circumstances, the nature of the workplace and the work the employee is required to perform.
• To mitigate the risk of a discrimination or unfair dismissal claim, employers will need to carefully consider the specific circumstances of any employee who refuses to comply with the vaccination direction.
• Any direction regarding vaccination should take into consideration COVID-19 vaccine work, health and safety guidance, which is expected to be issued by health and safety authorities.

Addressing some key questions

Is it reasonable to require employees to have COVID-19 vaccinations?

Employers would need to be able to demonstrate that mandating vaccinations is a prudent control to address risks of COVID-19 in the workplace.

There are obviously no Australian cases which consider the reasonableness of a direction to receive a COVID-19 vaccine. In the January 2021 decision of Glover v Ozare [2021] FWC 231, a care worker, Ms Glover, refused to receive an influenza immunisation in 2020 on the basis of a previous adverse reaction.

In light of the COVID-19 pandemic, her employer made immunisation mandatory and would not roster Ms Glover for work. Ms Glover commenced proceedings for unfair dismissal. This decision was limited to the jurisdictional issue of whether there had been a 'dismissal', with question of whether the immunisation direction was reasonable yet to be determined. However, in respect of mandatory vaccination, Commissioner Hunt commented:

Whether or not vaccinations are an inherent requirement of the job and therefore could amount to a reasonable direction will depend on the particular circumstances and the nature of the workplace.

It is not inconceivable that come November 2021, employers of men engaged to play the role of Santa Clause in shopping centres, having photos taken around young children, may be required by their employer to be vaccinated at least against influenza, and if a vaccination for COVID-19 is available, that too. The employer in those scenarios, where they are not mandated to provide social distancing, may decide at their election that vaccinations of their employees are now an inherent requirement of the job.

Whether or not vaccinations are an inherent requirement of the job and therefore could amount to a reasonable direction will depend on the particular circumstances and the nature of the workplace.

Key questions are:

• What is the risk to others if someone who is not vaccinated enters the workplace?
• Is vaccination an effective control against the risk?

Some factors that may be relevant in answering these questions are:

• Advice from health experts about the vaccine, its efficacy and any side effects;
• Any other controls that are, or could be, used to prevent the spread of COVID-19 in the workplace; and
• The 'staggered' nature of the vaccine rollout in Australia.

What are the legal risks?

An employee may refuse vaccination for many reasons, including a medical condition, religious or political beliefs, pregnancy or simply personal preference. Employers will need to consider whether those grounds are a genuine reason for exemption.

As Glover demonstrates, where action (such as dismissal) is taken against an employee who fails to comply with a vaccination direction, the employee may seek to bring a claim for unfair dismissal. Claims may also be brought under the general protections provisions of the Fair Work Act 2009 or anti-discrimination legislation.

What role will government play?

The Federal Government's COVID-19 vaccination policy does not support mandatory vaccinations. However, following concerns raised by multiple business groups about the complex legal and practical issues involved in the vaccination rollout, there are reports that the Government is working on guidelines or recommendations for employees in high risk workplaces such as aged care and hotel quarantine. IR Minister Christian Porter has commenced consultation with employers and unions in the healthcare sector and will engage with stakeholders from other sectors from 1 February 2021.

SafeWork Australia and the state workplace health and safety agencies are also expected to prepare guidance for employers as part of their suite of resources to manage COVID-19 in the workplace.

Actions you can take now

• Use your usual health and safety risk assessment process to determine whether making vaccination mandatory in your workplace is a prudent control.
• Monitor government policy and advice from health and safety authorities.
• If you are considering directing employees to have a COVID-19 vaccination, establish clear policies and processes dealing with:
  • effective communication of the direction;
  • exemption request management, based on medical advice;
  • protection of personal information; and
  • change management.