Can employers require employees to be vaccinated against COVID-19
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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 strategy for the roll out is to prioritise the vaccination of Australians most at risk of contracting coronavirus, including front line health workers, aged care residents and hotel quarantine workers. With respect to frontline workers, the contraction risk is plainly heightened and therefore, it is reasonable to direct those workers to be vaccinated because the risk to themselves, and others, is so obviously higher.
However, there is a significant group of other workers who, arguably, also fall into the vulnerable workers category such as those who work in places frequented by older Australians (Clubs or RSLs), those in supermarkets and factories or other workplaces of high touch, workers in food production or workplaces with onsite accommodation. For employers in all of these industries, it is not at all clear how they should weigh up their obligations under WHS laws against the government’s roll-out strategy.
Is there any ability for employers to direct employees to be vaccinated?
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.
Key takeaways
- There are currently no public health orders in Australia requiring employees to be vaccinated against Coronavirus.
- Employers (generally) cannot direct employees to be vaccinated as the vaccination is, at the present time, optional.
- However, employers do have the responsibility of eliminating, or if this is not possible, minimising the risk of exposure to Coronavirus and therefore, some (at the present time, limited), employers may be able to direct employees to be vaccinated, particularly if they operate in high risk industries or if it is otherwise considered necessary in order to discharge the duty to protect employees’ health and safety.
