Isn’t this a hot topic at the moment? 

There are many articles floating around on whether employees can be “forced” to have the COVID-19 vaccination. There are also many more opinions on the topic. 

Presently, there are already some mandated areas that employees are required to be vaccinated, which may have been made under a specific law such as a state or territory public health order. Many employers are now following suit and seeking to require their employees to be vaccinated. The question is whether this is lawful or not?

The short answer to the question is no, an employer cannot force an employee to have the vaccine, BUT, an employee’s decision to remain unvaccinated may have severe consequences for employment.  It is lawful however, for an employer to provide a direction to their employees to be vaccinated if the requirement is reasonable. What is deemed reasonable will vary from employer to employer and industry to industry.

So what is lawful and reasonable? 

Regardless of the circumstances, employees are required to follow lawful and reasonable directions of their employer. If the employee fails to do so, the employee’s employment may be terminated on valid dismissal grounds. 

The industry needs to be considered along with the relevant Work Health and Safety obligations that employers must abide by. An employer is required to eliminate risks to health and safety of their employees and others as far as it is reasonably practical to do so. There will be certain high risk industries such as aged care and health care that must factor in the health, safety and wellbeing of not only staff but patients, or others such as vulnerable individuals. This will be a very fine balance between protecting one employee and the health and safety of others. There are industries already that have a requirement for certain vaccinations.

Whilst as at the time of writing this, there have been no cases published on this topic, there are cases relating to employer mandated vaccinations such as a child care worker who refused to comply with the employers direction to have a flu vaccination lost her unfair dismissal case on the basis that the context of the employers operations involved the care of children who are either too young to be vaccinated, or cannot be vaccinated for health reasons. The employer needed to balance the needs of its employees against the needs of the employer’s greater community.  It was found that the flu vaccination requirement was reasonable and lawful and an inherent requirement of her position that involved the provision of care to young children and infants.

There has also been a recent decision from the Fair Work Commission that determined an aged care employee’s dismissal due to refusing the flu vaccine was not considered harsh or unfair. The employee had stated that she had had an anaphylactic reaction to a flu vaccine as a child. The Commission determined that the employer’s elderly clients were extremely vulnerable, particularly to the flu and that the mandatory vaccination policy in this instance was not unreasonable.

These cases will be used to provide guidance in future applications about whether a mandatory COVID-19 vaccination is reasonable and lawful. No doubt we will see some cases and clarification on this issue in the not too distant future.

What can an employee do?

Along with rights comes responsibilities. We absolutely have the right to refuse a vaccine, however when electing this option, consideration has to be given to the ‘responsibilities’ attached to that right, or, more appropriately, the consequences. Failure or refusal to comply with this direction at worst will result in a dismissal, and possibly no further employment if seeking employment in the same industry, at best, an employee could negotiate with their employer about possible other roles available, perhaps away from clients or stakeholders, or even a work from home option.  It appears likely that refusal without valid grounds such as proven medical exemptions are unlikely to be met with a sympathetic adjudicator or decision maker and the employee may find themselves not only needing to look for alternate employment, but also needing to look at moving industries.

Our lawyers are happy to speak to you about any employment related enquiries.