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As an employer, you can direct an employee to receive the COVID-19 vaccine if it is both lawful and reasonable. This means that the direction must comply with the law and be reasonable under the circumstances. 

Guidance from the Fair Work Ombudsman (FWO) and Safe Work Australia (SWA) suggests that most employees in Australia will not fall within this group. However, you will need to consider any such direction on a case by case basis in line with the relevant circumstances of your business and employees. This article explains when it may be reasonable for you to direct an employee to take the COVID-19 vaccine.

The COVID-19 Vaccine

The COVID-19 pandemic has had an immeasurable effect on businesses, including straining the employer-employee relationship. As an employer, you are responsible for the health and safety of:  

  • all your employees;
  • your clients; and 
  • customers visiting your premises. 

In the context of a rapidly spreading pandemic, it is desirable to have your employees vaccinated.  However, this can lead to tensions with some employees due to personal beliefs, medical conditions, or other related factors. This begs the question of whether you, as an employer, can compel your employees to get the vaccine?

Can Employers Make Employees Take the Vaccine?

The answer to this question is not definitive. It largely depends on whether it is reasonable for you to issue a vaccination direction for your employees. 

Factors that you should consider when determining what is ‘reasonable’ include: 

  • the relevant public health orders at the time; 
  • requirements in employment contracts; 
  • how high-risk the industry is; and 
  • the vulnerability of the people your business engages with.

For example, it would be more reasonable to issue vaccination directions for nursing home employees as opposed to employees at a call centre. This is because these roles face differing levels of risk and contact with vulnerable classes of people.  

It is ultimately up to you to properly enforce workplace health and safety laws. You must also adequately protect your workers and customers. For this reason, the law may require your employees to be vaccinated to best protect themselves and others. This was the case even before the COVID-19 outbreak. For example, abattoir workers in Australia must be vaccinated against Q fever to best protect customers who consume the meat they prepare.

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When is a Direction to Take the Vaccine Lawful and Reasonable?

To direct your employees to be vaccinated against COVID-19, you must consider whether it is ‘lawful and reasonable.’ When determining this, think about:

  • the nature of the work your employees complete. For example, does your business involve circumstances that give rise to risks relating to COVID-19 transmission;
  • if you require employees to be vaccinated to meet your legal work health and safety obligations;
  • whether the vaccination is an inherent requirement of your employees’ role(s);
  • whether it is discriminatory to require certain employees to receive the vaccine (for example, due to religious beliefs); and
  • if you can implement alternative arrangements to reasonably manage the risk to employees who do not have the vaccine. A commonly used alternative arrangement is to have employees work from home where possible. 

As per the earlier example of employees at a nursing home, it is sometimes obvious when a vaccine direction is lawful and reasonable. However, such a determination will not be this clear-cut for the vast majority of Australian businesses, so you should carefully review the unique circumstances of your business. 

Public Health Orders

The landscape in relation to the vaccine is changing rapidly. Therefore, it is vital for employers to continue to be vigilant in monitoring updates and guidance from relevant government bodies (such as the guidance already provided by the Fair Work Ombudsman and Safe Work Australia) and any changing law in this area.

Of course, where a public health order requires your employees to be vaccinated, it is essential you follow these directions. These public health orders vary from state to state. For example, in New South Wales, public health orders require employees of certain businesses to be vaccinated, including:

  • health care workers;
  • those working in aged care and disability facilities; and
  • education and care workers. 

As an employer, it is essential you keep up to date with the applicable public health orders in your state.

Is There An Alternative to Providing a Direction to Employees?

You may also consider alternatives to directing employees to take the vaccine. This could include: 

  • incentivising employees to take the vaccine willingly. For example providing paid time off for the employee to take the vaccine, or faciliting its administration during working hours;
  • alternative working arrangements for employees who do not wish to, or cannot,take the vaccine.  This includes those that it would be unlikely that a direction would be lawful and reasonable for; and
  • increasing other COVID-19 safety measures to account for employees who may choose not to take the vaccine.

Anti-Discrimination Laws

It is often questioned whether requiring vaccinations for employees is considered discrimination. The Equal Opportunity Act prohibits discrimination for certain attributes, such as disability, religious or political beliefs or sexual identity. The Act does not directly protect vaccination status. This means anti-discrimination laws do not protect those who deny the vaccine for personal reasons. 

However, the Act protects some employees who cannot receive the vaccine for health reasons. These employees may have protection under anti-discrimination laws. For example, the Act may protect employees if they have disabilities or specific medical advice against vaccination. However, you might find that it is reasonably necessary for your employees to be vaccinated to protect the health and safety of those who interact with your business. In that case, this may constitute a reasonable exception for not applying any anti-discrimination laws.

It is also important to note that the law is unlikely to consider vaccination status a political belief. Therefore, if an employee chooses not to receive the vaccine for political reasons, they are unlikely to be successful with a claim based on anti-discrimination. 

Key Takeaways

As an employer, you can direct an employee to take the COVID-19 vaccine where this direction is lawful and reasonable. This is a rapidly changing area and you should continually check for updates. Some key elements that you should consider when determining if a vaccination direction is lawful and reasonable include:

  • public health orders;
  • the nature of the work carried out by the employee;
  • if you require employees to be vaccinated for your legal work health and safety obligations;
  • whether the vaccination is an inherent requirement of the employee’s role;
  • whether it is discriminatory to require certain employees to receive the vaccine; and
  • if you can implement alternative arrangements to reasonably manage the risk to employees who are unvaccinated.

If you are uncertain as to whether or not you can require your employees to take the vaccine, then it is crucial that you seek legal advice. Our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions

Can employers force employees to have the COVID-19 vaccine?

As an employer, you can direct an employee to take the COVID-19 vaccine where it is a lawful and reasonable direction. This is a rapidly changing area that you must remain on top of as an employer.

When is a direction to take the vaccine lawful and reasonable?

There are many factors that you should consider when determining the lawfulness and reasonableness of a vaccination direction. These include public health orders, work health and safety obligations, and anti-discrimination laws. The nature of the work carried out by the employee, and whether being vaccinated is an inherent requirement of the employee’s role are also important considerations. If possible, your business should seek to implement alternative arrangements to manage the risk for unvaccinated employees.

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