As Australia waits on the approval by regulators of the COVID-19 vaccines questions are now being asked about whether employers will be able to demand that employees have the vaccine. It is expected that Australia will see a vaccine introduced in March 2021.
At first glance it might seem extraordinary that an employer can require an employee to undertake an invasive medical procedure to be able to keep their job. However, in certain workplaces and for certain roles, this may be the case. It may surprise many people to find out that there are already situations in Australia where it is a requirement of their role that employees be vaccinated against certain illnesses.
The starting position is that it is legal for an employer to require employees to take steps to ensure their safety and the safety of others such as patients, clients or even the public. Most of the time this will involve uncontroversial steps like undertaking training or using protective equipment. There are some workplaces where the risk of certain illnesses are so great and where there are vaccines against those illnesses, that it may be reasonable for the employer to require employees to have a vaccine to stay employed. This will vary from workplace to workplace and will depend on the nature of the illness and the possible consequences if employees are not vaccinated.
The general test is whether it is reasonable and necessary for the employer to comply with their safety obligations to require employees to follow the safety instructions given by the employer. The test of what is reasonable for existing employees is slightly more strict than for new employees. This is because the Fair Work Commission will weigh up the possible consequences of the employee losing their job when considering whether the employer’s direction is reasonable and necessary.
Currently there are National guidelines set by the Health Department for vaccinations for people at occupational risk. Some of these have been established for many years and it is well known that employees who will be working in those roles will be required by employers to have certain vaccinations. One example of this is that it is very common that employees working with animals such as at abattoirs will be required by their employer to have a Q fever vaccination.
At state and territory levels there can also be health directions issued that require certain employees to have vaccinations if they are working in specified roles particularly workers in high risk environments such as aged care or health. In the current pandemic, restrictions have been put in place by all states and territories that anyone entering certain aged care facilities must have a flu vaccination. There are very limited exemptions to this requirement.
Once the COVID-19 vaccine is available in Australia it is possible that similar health directions will be issued to require employees in specified roles to have the vaccine. For other roles, it will depend on whether the employer’s requirement that employees are vaccinated is reasonable and necessary to ensure safety. This is a high test given the invasive nature of vaccines. Ultimately, in the absence of a government health direction mandating vaccinations for certain roles, the Fair Work Commission and safety regulators will have the final power to make this decision.
This is a complex and evolving area and employers should seek advice about their particular situation before making any decisions about imposing a requirement for employees to be vaccinated. The question of the “reasonableness” of such a direction will need to be assessed on a case-by-case basis and it may be that there’s no single correct approach.
At the very least, employers will have the option of encouraging or recommending COVID-19 vaccination to employees.
We will update you as more information comes to hand but please contact us in the meantime if you would like advice for your workplace.
This article was written by Erica Hartley, Partner.