On 7 January, 2021, at Parliament House, Prime Minister Scott Morrison announced that COVID-19 vaccinations will begin rolling out in Australia as early as next month, with health and aged-care workers to be among the first in line to receive the jab.
The Federal Government previously mandated flu vaccines for all aged-care workers and visitors to aged-care facilities in Australia in May 2020. Following this mandate, a registered nurse working in aged-care resigned after refusing the vaccination following a history of side effects.
If an employee refuses a vaccine, could they legally be fired?
BAL Lawyers Employment Law and Investigations Group legal director John Wilson says it is imperative that employers follow their duty of care to employees to ensure the workplace is safe, and in the case of COVID-19, this may include a vaccine mandate.
“In environments where COVID-19 presents a high risk to employees, a mandatory vaccine policy is likely a reasonable step to ensure the workplace’s safety,” he says.
Where a workplace’s clients or patients include vulnerable groups – for example, the elderly or very young children – John says the employer’s duty of care extends to those people, too.
A recent case in the Fair Work Commission saw a childcare worker sacked for refusing a flu vaccine. While that case was dismissed for procedural reasons, the commission noted that in a workplace that cares for children, including those too young to be vaccinated, it is arguable that a mandatory flu vaccine is lawful and reasonable.
“This particular case is significant because it points to how proceedings may be carried out should an employee refuse a mandatory COVID-19 vaccine,” says John.
But how does the law deal with more complex situations where a worker cannot, or will not, receive a vaccine?
The Australian Medical Association’s manager of workplace relations and general practice, Tony Chase, says workers in at least two contexts may be protected from discrimination on the basis of refusing vaccination.
“Where religious beliefs come into play, workplaces need to try to accommodate that,” he says. “Likewise, if a worker can establish that they have an allergy to the type of vaccination that is being proposed, there may be ground for objection based on that.
“For employers to expect their staff to participate in vaccinations, they need to make the case that it is both lawful and reasonable.”
However, Tony warns it may be open to staff to refuse for any reason.
“This is where the difficulty lies, and it’s important to bear in mind that it falls to the employer to establish the reasonableness of what is being required,” he says.
For more information on the legal implications of mandatory vaccination in the workplace, listen to The HR Breakfast Club podcast episode Vaccinations and Drug Testing – With James Macken and Tony Chase.
For advice relating to your workplace or your particular employment circumstances, contact the Employment Law and Investigations Group at BAL Lawyers on 02 6274 0999.