Can Employers Make the COVID Vaccine Mandatory for Employees?

COVID-19 has catalysed a year of unprecedented developments in the legal industry. This has led to concerns regarding workplace laws, employment rights and privacy rights. Making the COVID vaccine mandatory, however, seems to be slightly more clear cut. Relevant Fair Work Commission cases provide us with some guidance on how employees resistance to vaccination may be dealt with.

Current guidelines tell us that employers have a right to direct employees in a ‘lawful and reasonable’ manner. Employers also have the responsibility to provide a safe working environment, leading many employers to direct employees to work from home throughout 2020 (and into 2021). In the current COVID climate, a safe workplace may very well include a vaccinated workplace. As a result, employers may have the right to direct employees to vaccinate for the safety of the workplace. However, a vaccinated workplace being a safe workplace will depend on the type of workplace/customer/coworkers – leaving a strict legal answer almost impossible. 

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What we know about making the vaccine mandatory so far

A 2020 Fair Work Commission case regarding a termination of employment following an employees refusal to have the flu vaccine, is particularly relevant. The dismissed case provides good legal direction on how these claims may be dealt with in the COVID landscape. Most importantly, it provides that mandatory vaccination is lawful and reasonable when employees key operations are with regard to the care of children.

This is under the reasoning that children under a certain age cannot be required, nor allowed, to have certain vaccines. There may also be valid health concerns that leave them unable to vaccinate. As a result, the responsibility falls on the employer to ensure the employees interacting with the clientele are able to protect themselves and the children. This may well extend to similar areas like aged care, health care and even the education industry. The serious nature, high infection and death rate of COVID in comparison to the flu, make it even more likely that mandatory vaccines for workplaces will occur during roll out.

Unsure on whether your workplace may be impacted? Please contact one of our lawyers here for guidance. 

If the vaccine is mandatory, what will the valid grounds for refusal be?

If workplaces do mandate vaccination, there will be valid grounds for refusal. Certain grounds for refusal such as medical conditions or potential medical implications will extend across workplaces. These medical exceptions are protected under the Disability Discrimination Act, requiring reasonable adjustments for certain individuals.

Rejection based on moral or ethical grounds are more contentious. Ultimately, this will probably depend on your workplace. However, for more certainty contact one of our lawyers here to guide you. 

3 things to consider if you are mandating the vaccine for your workplace

If you are a business owner or workplace manager, and planning on mandating the vaccine here are some things to consider:

1. Communicate with your employees

Educate and include your employees on the vaccination discussions and your responsibility as employer. Ensuring they are aware of the shared responsibility to provide a safe working environment is important. In doing so, you remove a ‘dictator’ style stigma in the workplace. 

2. Allow your employees to express their concerns with you, and try find a way to resolve it

Vaccinations are a contentious area with many different opinions. Allowing your employees to express their concerns to you will make them feel heard and appreciated rather than just following orders. You may be able to work together to solve the issue – perhaps allowing the employee to work from home, or transition their role slightly. 

3. Be discrete

In an area such as this, it is important to make sure that employees preferences/opinions are kept between you and them. Workplace discussion surrounding certain employees’ position on the topic may lead to workplace bullying or harassment. Vaccinations are a personal matter, meaning discretion must come first. 

What to expect

Vaccinations may begin to roll out in Australia as early as February this year, meaning this topic is incredibly relevant. However, we may need to wait on findings from the Fair Work Commission regarding flu vaccination cases to further direct workplace decisions on the matter. Or rather, see what policies roll out in tandem with the vaccine. For more information or clarification on any of the issues raised in this article, contact one of our lawyers.

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