With the COVID-19 vaccine set to roll out in the coming months, many employers may be wondering how they can ensure that the maximum number of employees gets vaccinated. Can getting the vaccine be made mandatory in workplaces?
While the Federal Government has said it will not mandate COVID-19 vaccinations in the workplace, there is room for the State and Territory Governments to do so, using their powers under workplace health and safety rules. Whether they would actually exercise this right is unclear, though it seems unlikely there would be a blanket rule imposed. Rather it will likely be up to individual workplaces to navigate.
Some employees will be keen to get vaccinated and would prefer their fellow employees get vaccinated as well. Other employees may not want to get the vaccine, citing their individual rights as the reason to be free to make their own choice.
The challenge for employers is to balance the duty-of-care they have for employees to have a safe workplace against the rights of individual employees.
When can employers direct employees to get vaccinated?
Employers can direct their employees to be vaccinated only if the direction is lawful and reasonable. This will depend on how this requirement complies with the relevant contracts, awards or agreements and is assessed on a case by case basis.
Whether the request is reasonable will depend on several factors, including:
- The nature of the particular business. For example, higher risk workplaces such as childcare centres or hospitals may operate under different rules
- Any specific workplace health and safety rules in effect in that business
- The nature of the particular work of the employee including proximity to other people
- The ability to work from home
- Availability of other preventative measures such as social distancing and the use of personal protective equipment (PPE)
- Any legitimate objections from employees, for example on religious or medical grounds.
Are there any legal precedents?
There are legal precedents available in relation to enforcement of the flu vaccination in workplaces. Those cases show that the test of whether a mandate is reasonable varies depending on the individual circumstances and won’t hold true more broadly.
We’re likely to see more legal cases emerge in this area as workplaces grapple with the unchartered territory specific to COVID-19. Until then, employers should seek legal advice on whether it is lawful and reasonable to mandate the COVID-19 vaccine in their workplace and in which cases they may not be able to enforce it (such as on religious grounds). This will minimise any risks that could emerge down the track.
Rolf Howard, Managing Partner, Owen Hodge Lawyers