15 January 2021

Can employers enforce mandatory vaccinations?

| BAL Lawyers
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Man receiving vaccination.

COVID-19 vaccinations will begin rolling out in Australia as early as February 2021. Photo: Supplied.

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.

READ MORE Aged-care worker walks out after flu vaccine becomes mandatory

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?

John Wilson from BAL Lawyers.

John Wilson is the managing legal director at BAL Lawyers, and he says employers have a duty of care to their employees and clients. Photo: Supplied.

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.

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HiddenDragon9:30 pm 15 Jan 21

A very interesting related legal question will be businesses which promote themselves as “safe” because their staff have been vaccinated – which might make sense if a vaccine could be 100% effective in stopping the transmission of the virus, but may not be so smart if it actually masks asymptomatic transmission.

Also wondering about today’s brainwave from the NSW government – apparently brandishing a phone with a green tick on the screen will be taken as proof that the brandisher has been vaccinated. Seriously…….?

Adrienne Yeo9:34 am 16 Jan 21

It is all part of the mad rush to “business as usual” which of course is understandable in the light of financial stress many are under. Consequences be damned, or at least postponed to worry about much later down the track.

As someone who had an instantaneous adverse reaction to a vaccination, requiring an emergency medical intervention, I can say that adverse reactions can be serious and are not as uncommon as pro-vaxers would have us and themselves believe. I am not anti-vax for the community, just anti-vax for people with a history of adverse reactions. Mandatory vacinations will be life threatening for some so should not be made mandatory for all.

Adrienne Yeo9:30 am 16 Jan 21

The article did say that people could opt out if adverse reaction was going to be an outcome, but how can you establish that until the vaccine is adminstered ? Have enough studies been done to find out who might be at risk ? A lot of pro vavers (mainly from pharma companies) try to class these newer, less tested vaccines together with older, well established ones like for polio or malaria.

Adrienne Yeo10:06 am 15 Jan 21

The question that was not addressed relates to where liability falls, should recipients of the vaccine suffer negative side effects. I understand that the drug companies have managed to wrangle protection from liability, in order to rush the vaccine out. Workers would be put in an unenviable position where they are sacked if they don’t comply, and then sacked when they get sick after they do

Vaccinations should be mandatory if you want to work. No exceptions!

Unless serious Auto-immune reactions have occurred for that person!

Matthew James4:50 pm 15 Jan 21

“where liability falls, should recipients of the vaccine suffer negative side effects” – you get taxpayer-funded medical care, same as you get if Covid puts you in hospital. Liability is an issue if somebody has done something wrong. If somebody has done something wrong, you have all the normal remedies in law.
“drug companies have managed to wrangle protection from liability” – no they haven’t. Did an anti-vaxxer tell you that?

Adrienne Yeo9:01 am 16 Jan 21

Errr no. I don’t know if you can post links here, but any google search will throw up results from mainstream media (eg CNBC) that Pfizer and other vaccine companies cannot be sued. Anyways, this is “heartening” to note that Professor Woods from the University of Sydney “thinks” that the Australian Government would wear the cost of any ill side effects from the vaccine. To what extent the Australian Government would pay ? Well, it guess it would take a couple of class actitons to find out !

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