Australia has, in March 2021, commenced the roll out of the COVID-19 vaccine. However, at present, unless there are any public health orders requiring employees to be vaccinated, there is no overall law that allows employers to direct their employees to be vaccinated, unless one considers Australia’s Work Health and Safety (WHS) laws, that place a positive obligation on employers to manage the risks to the health and safety of its workers.
The first question is whether directing an employee to be vaccinated against Coronavirus is a lawful and reasonable direction. Weighing up the contraction risk against the rights of an employee to decline vaccination, industries where it is more likely to be a lawful and reasonable direction would include health care, aged care and hotel quarantine (including both security and hotel staff), where the risk of exposure for workers is obviously higher.
Nonetheless, directing employees, even in high risk industries, to vaccinate, must be carefully considered to ensure there are no unintended indirect discriminatory effects. For example, given pregnant women are being advised against vaccination, a direction to all employees to vaccinate may render any pregnant women unable to attend at work. Therefore, any direction should only be made after an employer is able to establish sound and defensible reasons for why it is a lawful and reasonable direction, and having considered any potential discriminatory effects.
If an employer, after careful consideration, has determined that requiring employees to be vaccinated would not be a lawful and reasonable direction, the only alternative available to them seems to be ‘encouraging’ employees to do so. One way of achieving this might be to make vaccinations available in the workplace itself, much as we have done with flu vaccines for many years.
However, if an employee declines to be vaccinated, then most employers are likely to face extreme difficulty in requiring compliance, or in disciplining an employee as a result of their declination.