As the Federal Government commences its COVID-19 vaccine rollout, the Fair Work Ombudsman has released advice for employers on whether they can require employees to receive the jab.
Meyer Vandenberg Lawyers special counsel John Nikolic says in most circumstances it is unlikely to be lawful to require employees to be vaccinated.
“This is a complex area of the law, with intersecting rights and obligations under public health, work health and safety, employment and discrimination laws,” he says.
“There are currently no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against COVID-19. The Australian Government’s policy is that receiving a vaccination is voluntary, although it aims to have as many Australians vaccinated as possible.”
John says while it is not currently mandatory under public health laws for employees to be vaccinated, states and territories may introduce vaccination requirements for particular industries where there is a heightened risk of catching or spreading COVID-19.
Under model work health and safety laws, employers must take reasonably practical steps to provide a safe work environment, including by minimising the risks arising from COVID-19. However, John says that is unlikely to require the vaccination of employees given the availability of other effective ways of minimising those risks, including social distancing, hygiene and cleaning.
“Under employment law, employees must follow the directions of their employers as long as they are lawful and reasonable,” he says. “In most circumstances, it is unlikely to be reasonable to require employees to be vaccinated unless there are particular risks of contraction or contagion, such as in hotel quarantine or a hospital or aged care facilities.”
There are limited circumstances where an employer may require their employees to be vaccinated.
The Fair Work Ombudsman has said whether an employer can require their employees to be vaccinated against COVID-19 is highly fact dependent, taking account of the particular workplace and each employee’s individual circumstances.
Relevant factors an employer should consider include whether a specific law requires an employee to be vaccinated or whether an enterprise agreement, other registered agreement or employment contract includes a provision about requiring vaccinations.
“Employers must also take care to ensure they do not breach anti-discrimination laws, particularly in relation to disability discrimination,” says John. “There may be medical reasons why an employee cannot be vaccinated, which would then require an employer to consider reasonable adjustments for the person to enable them to work in the role which could include additional social distancing, hygiene or cleaning measures.”
If an employee refuses to be vaccinated, contrary to a specific law, agreement or contract that requires vaccination, or after receiving a clear and repeated lawful and reasonable direction, an employer should, as a first step, ask the employee to explain their reasons for refusing the vaccination.
If the employee has provided a legitimate reason for not being vaccinated – for example, the employee has an existing medical condition – the employee and their employer should consider whether there are any other options available instead of vaccination.
The ombudsman is encouraging employers and employees to continue taking a collaborative approach when discussing, planning for, and facilitating COVID-19 vaccinations in the workplace.
“Overall, common sense will be a good guide to what is lawful, but where employers are considering introducing a requirement for employees to be vaccinated, they should seek legal advice to ensure they have a sound and reasonable policy basis for doing so,” says John.