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 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:
- JobKeeper payments and directions;
- the JobSeeker regime;
- snap lockdowns; and
- a myriad of work health and safety issues to navigate,
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:
- medical conditions; or
- perceived safety concerns.
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?
Can employers make employees take 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:
- employers cannot assume that they can direct employees to take the vaccine;
- employers who do direct employees to take the vaccine will need to demonstrate that it is a lawful and reasonable direction, which will be determined on a case-by-case basis; and
- vaccinated employees will probably not be able to refuse to come to work if other employees are not vaccinated (subject to any relevant health directions).
When is a direction to take the vaccine lawful and reasonable?
You need to consider this in line with the individual circumstances of your business and employees. Some relevant factors include whether:
- the nature of the work carried out by the employee and the business is relevant. For example, does the employer’s business involve circumstances which give rise to risks relating to COVID-19 transmission?
- the vaccine is required in order for the employer to meet their legal work health and safety obligations;
- the vaccination is an inherent requirement of the employee’s role;
- it is discriminatory to require certain employees to receive the vaccine (for example, due to religious beliefs); and
- what alternative arrangements can be put in place to reasonably manage the risk relating to employees who do not have the vaccine (for example, working from home)?
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.
Is there an alternative to providing a direction to employees?
Employers may also wish to consider alternatives to directing employees to taking the vaccine. This could include::
- incentivising employees to take the vaccine willingly, for example providing paid time off for the employee to take the vaccine, or allowing it to be administered during working hours;
- considering alternative working arrangements for employees who do not wish to take the vaccine, and for who it would be unlikely that a direction would be lawful and reasonable; and / or
- increasing other COVID-19 safety measures to account for employees who may choose to not take the vaccine.
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.
LegalVision is a market disruptor in the commercial legal services industry. Their innovative business model and custom-built technology allow their lawyers to provide a faster, better quality and more cost-effective client experience. LegalVision is a leader in delivering legal services and has assisted more than 150,000 businesses. The firm was recently named the fastest growing law firm in the Asia-Pacific by the Financial Times.