An employer can direct an employee to take the COVID-19 vaccine where it is a lawful and reasonable direction. This means the direction complies with the law and is reasonable under the circumstances.
Recent guidance from the Fair Work Ombudsman (FWO) and Safe Work Australia (SWA) suggests that most employees in Australia will not fall within this group. However, you will need to consider any such direction on a case-by-case basis, in line with the relevant circumstances of the business and the employee. This article explains when it may be reasonable for an employer to direct an employee to take the COVID-19 vaccine.
The COVID-19 pandemic has had an immeasurable effect on businesses, including straining the employer-employee relationship.
In a time that has already been trying for workplaces, including:
the next chapter is now upon Australian workplaces, with the COVID-19 vaccine rolling out across Australia.
Many Australians are likely to agree to take the COVID-19 vaccine, for their own safety and that of others. However, some individuals will not want to take the COVID-19 vaccine, possibly due to their:
As an employer, you are responsible for the health and safety of all your employees, as well as your clients or customers visiting your premises. In the context of a rapidly spreading pandemic, it is desirable to have your employees vaccinated. Which begs the question – can an employer compel its employees to get the vaccine?
The answer to this question is not definitive. However, recent guidance from the FWO and SWA has, at a high level, indicated that:
You need to consider this in line with the individual circumstances of your business and employees. Some relevant factors include whether:
In some circumstances it may be obvious when it is a lawful and reasonable direction in relation to the vaccine. For example, where employees have close contact with vulnerable classes of people, such as in direct care roles. However, for the vast majority of Australian businesses, the determination will not be this clear, and care will need to be taken.
The landscape in relation to the vaccine could change rapidly. It is vital for employers to continue to be vigilant in monitoring updates and guidance from relevant government bodies (like the guidance already provided by the Fair Work Ombudsman and Safe Work Australia), as well as any changing law in this area.
Employers may also wish to consider alternatives to directing employees to taking the vaccine. This could include::
Regardless of the business you operate, whether or not you can lawfully and reasonably require an employee to take the COVID-19 vaccine is a delicate and sensitive issue. It is also not a simple matter, with the regulatory environment likely to change rapidly, and repeatedly.
If you are uncertain as to whether or not you can require your employees to take the vaccine, then it is crucial that you seek legal advice. LegalVision’s experienced employment lawyers can assist. LegalVision is also hosting a free webinar on 22 April 2021 to answer your questions.
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