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Mandatory COVID-19 vaccinations for employees

Key points

  • Vaccinations can be mandated for some employees.
  • Employers can give employees reasonable directions which can include requiring a vaccination if reasonable.
  • The Fair Work Ombudsman have provided advice on mandating vaccinations for employees in the workplace.
covid-19 vaccination vial

Summary

We have recently seen several announcements from the Prime Minister, NSW Premier and some large Australian companies regarding mandating vaccinations for employees.  As NSW looks to re-open in part in the middle of October, the loosening of these restrictions looks to be limited to only those people who are fully vaccinated. It doesn’t appear that COVID-19 will disappear anytime soon, and so many employers are considering their rights or obligations in mandating vaccinations for their staff.

If a public health order requires employees in an industry to be vaccinated, an employer must ensure that their staff are vaccinated. This requirement is subject to any staff with a valid medical exemption.

In other cases, an employer can direct their staff to be vaccinated if the direction is lawful and reasonable. 

Mandated industries

As of the date of this article, employers must ensure that their staff in the following industries are vaccinated in accordance with the public health orders unless they have a valid medical exemption:

  • health care workers
  • aged care facilities
  • education and care workers
  • quarantine workers
  • transportation workers
  • airport workers
  • authorised workers leaving an area of concern for work
  • constructions workers who live in an area of concern.

Areas of concern are constantly evolving, affecting those who may be required to be vaccinated. The date by which the different industries must be vaccinated is also different.  

Employer mandated vaccination

Employers have a general power to give employees lawful and reasonable directions. There is no hard and fast rule to determine that a direction is lawful and reasonable. It depends on the specific circumstances and means that it may differ between individual employees or groups of employees.

A lawful direction must comply with the terms of any employment contract, award or agreement, and any Commonwealth or State legislation. For example, employers should consider their obligations under anti-discrimination law which will affect employees with medical conditions.

The Fair Work Ombudsman has given some advice on the considerations to determine whether the direction is reasonable, including:

  • the nature of the workplace, including the ability to social distance or extent of public-facing roles
  • the extent of community transmission of COVID-19 in the location of the workplace
  • the terms of any public health order
  • the effectiveness of vaccines in reducing the risk of transmission or serious illness
  • work health and safety obligations
  • each employee’s circumstances, including their duties and the risk associated with their work
  • vaccine availability
  • whether any employees have legitimate reasons for not being vaccinated

Depending on these considerations, it may be that an employer can mandate vaccinations for some or all of their employees. As many of these considerations will change over time, whether a direction to mandate vaccination is reasonable may also change over time.

Example circumstances

The employee working remotely from home

It is unlikely that a direction for an employee working from home to be vaccinated will be reasonable. As there is a low risk of coronavirus transmission, a direction to be vaccinated against coronavirus is unlikely to be reasonable.

The employee working at a cafe in an area of high transmission

As the public health orders currently require these workers to be vaccinated subject to a valid medical exemption, they must be vaccinated. If the public health orders did not require them to be vaccinated, it is more likely that a direction to be vaccinated would be reasonable. As the employee is in a public-facing role in an area of high transmission, there is a higher risk to the employee, which is more likely to make the direction reasonable.

The employee working at the corner store in an area with no community transmission

Subject to any public health order mandating vaccinations, a direction is less likely to be reasonable to an employee in an area with no community transmission. Though they are public-facing as the risk of transmission is low, the direction is less likely to be reasonable compared to a location with high community transmission.

Summary

Employers can give employees a direction to be vaccinated against COVID-19 depending on the circumstances and in some industries must mandate vaccination. The reasonableness of the direction will depend on the specific circumstances of the employer and employee and will differ between individual employees.

If you are an employer or employee needing advice on mandatory vaccinations in your workplace, contact our team today for a no-obligation discussion.

Further information

Adam has been a member of the Stephen Wawn & Associates' team since 2015. He has experience in litigation including commercial and estate litigation and advises clients on a diverse range of legal issues.

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DISCLAIMER

No part of these notes can be regarded as legal advice. Although all care has been taken in preparing all notes, readers must not alter their position or refrain from doing so in reliance on any of these notes. Stephen Wawn & Associates do not accept or undertake any duty of care to readers relating to any of these notes. All inquiries should be directed to Stephen Wawn & Associates.

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