There are many different issues raised by this question so there is no 'one size fits all' answer. However, what is clear is that in most cases the answer will be 'no.'
Guidance on COVID-19 vaccinations from the Fair Work Ombudsman1 and Safe Work Australia2 confirms the view that in most cases employers should assume that they will not be able to require their employees to be vaccinated.
This view follows advice received by National Cabinet from the Australian Health Protection Principal Committee (AHPPC) that there is currently a lack of evidence regarding effectiveness at preventing transmission.3
There are currently no state or territory public health orders requiring COVID-19 vaccinations, and nothing in workplace health and safety (WHS) law requires that employers mandate vaccination to meet their duties to eliminate (or if that is not reasonably practicable, minimise) the risk of COVID-19 in the workplace.
Given all of this, how does an employer determine whether it is one of the few that may be able to require employees to be vaccinated?
Vaccinations in the workplace
Two recent Fair Work Commission cases involving employees who were dismissed for refusing mandatory flu vaccinations have provided useful commentary but have not definitively answered the question.[4]
Interim decisions in those matters confirmed the principle that employers can only issue a direction to employees if the direction is lawful and reasonable – and that is something which must be assessed on a case-by-case basis. Some of the relevant considerations will include WHS obligations, public health orders, the nature of each employer's workplace, the inherent requirements of each employee's role, whether alternative arrangements are available, health considerations for each employee, the vulnerability of clients and customers and anti-discrimination obligations.
Requiring employees to be vaccinated will also raise other relevant considerations. For instance, there may be consultation obligations under applicable modern awards and enterprise agreements, and there will likely be privacy considerations stemming from information disclosed and collected as part of the process.
Further, we know from the Government's vaccination rollout plan[5] that COVID-19 vaccinations will not be available to workers in every industry at the same time. So even if an employer was able to lawfully issue a direction to staff to be vaccinated, it may not be possible for all employees to access the vaccination until they become more widely available. This will make any blanket direction difficult to enforce at this early stage.
What should employers do next?
As a starting point, any employer considering whether to issue a direction to be vaccinated against COVID-19 should conduct a risk assessment.
We then strongly encourage you to seek legal advice to ensure that you have considered all of the various obligations involved before the direction is issued, and certainly before any action is taken against any employees who may refuse vaccination.
While it is exciting to see that the Government's COVID-19 vaccination program has now commenced, employers should keep in mind that vaccination is unlikely to be a silver bullet against COVID-19. All other available risk-mitigation measures such as social distancing, face masks, working from home where possible and PPE are likely to remain a necessary feature of Australian workplaces for some time to come.
Footnotes
3 https://www.pm.gov.au/media/national-cabinet-statement-1
4 Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083 and Ms Maria Corazon Glover v Ozcare [2021] FWC 231
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.
