With the increasing urgency for individuals in Australia to be vaccinated against Covid-19, one of the most common questions we’ve been asked recently is “Can you make Covid Vaccinations Mandatory for Employees?”.

We provide a brief snapshot of the circumstances where an employer can require its employees to be vaccinated.

Employers can only require employees to be vaccinated against Covid–19 in circumstances where:

  • It is required by law (eg. if there is a public health order mandating vaccinations);
  • It is permitted under an enterprise agreement, registered agreement or employment contract; or
  • It is a lawful and reasonable direction by the employer.

Requirement by Law

If a public health order requires workers to be vaccinated against Covid-19 and it applies to your business and employees, you and your employees will need to comply with the order.

For example, the NSW Government has released the Public Health (COVID-19 Air Transportation Quarantine) Order (No 2) 2021, this requires all quarantine workers, transportation works and airport workers to be vaccinated against Covid-19 prior to entering their workplace or providing services.

At the time of this article, a public health order has also been released for construction workers who live in local government areas of concern, requiring the workers to receive a Covid-19 vaccination under the Public Health (Covid-19 Additional Restrictions for Delta Outbreak) Order 2021.

In circumstances where the legislation and public health order mandate vaccination for particular workers and it applies to your employees, you will be able to require your employees to be vaccinated.

Permitted under an agreement

In circumstances where there is an agreement that contains provisions around Covid-19 vaccinations, employers may be able to rely upon those provisions to require their employees to be vaccinated.
However, it is important to note that provisions around flu shot vaccinations will not apply to Covid-19 vaccinations and any provision that is contrary to anti-discrimination laws will not be enforceable.

Lawful and reasonable direction

What is considered to be a lawful and reasonable direction by an employer will need to be assessed on a case-by-case basis and be dependent on the circumstances of each individual employee.  In the public arena, two high profile companies, Qantas and SPC, have made the decision to issue such directions.

A direction will be lawful if it complies with any applicable agreement (eg. enterprise agreement, registered agreement or employment contract) and any Commonwealth, state or territory law that applies.
For a direction to be reasonable, the employer will need to consider:

  • the nature of the employees’ work (e.g will be employee be required to interact with the public, whether social distancing can be maintained etc);
  • the extent of community transmission of Covid-19 in the location where the direction is given (eg. whether the employee will be performing their duties in a Local Government Area of concern or Covid-19 hotspot area);
  • the effectiveness of the vaccine;
  • their work health and safety obligations (eg. whether there are internal processes implemented at your business or a Covid Safety Plan);
  • each employee’s circumstances (eg their duties);
  • whether the employee has legitimate reasons for not being vaccinated (eg. a medical exemption); and
  • whether the vaccination is available.

Employers should also consider whether they have consulted their employees prior to implementing any internal policies requiring vaccinations, as well as potentially unions and other industry groups. There may be additional obligations imposed on employers through any applicable award or enterprise agreement, such as the requirement for businesses to consult employees prior to implementing any significant workplace change.

Exercise caution

Employers should exercise caution when considering mandatory vaccinations, including whether there are any breaches to anti-discrimination laws (eg. discrimination based on protected characteristics such as disability).

Prior to requiring employees to be vaccinated, employers should consider any applicable Commonwealth, state, or territory discrimination laws and general protection provisions under the Fair Work Act 2009 (Cth).

 

So, Can you make Covid Vaccinations Mandatory for Employees?

In some circumstances, yes. But consider the following…

Employers will need to ensure that they are aware of their obligations under any applicable legislation and legal instrument (eg. award, enterprise agreement, employment contract) prior to requiring employees to be vaccinated.

Employers should also allow employees an avenue to express any concerns they may have and adopt a collaborative approach that can support employees such as providing paid time off to allow employees to receive the Covid-19 vaccination.

If you have any questions or wish to discuss the above, or want to consider if you can provide such a direction to your employees, please do not hesitate to get in touch with Morrissey Law & Advisory.  

 


 

Morrissey Law + Advisory communications are only intended to provide commentary and general information as at the date of publication. They are for reference purposes only, do not constitute legal advice and should not be relied upon as such. Formal legal advice should always be obtained about particular transactions, contracts or matters of interest before taking any action based on this communication. Authors and contributors may not be admitted in all State and Territories.