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No jab, no job: mandatory vaccination and managerial prerogatives

The development of multiple COVID-19 vaccines in the space of a year seems nothing short of miraculous. After more than a year of lockdowns, masks and working from home, many countries are now embarking on ambitious vaccination programs in the hope of returning to pre-pandemic life. However, the prospect of mass or even mandatory vaccinations has sparked fierce opposition from some groups. They’ve raised questions over the safety and long-term effects of the vaccine and say that their personal right to bodily autonomy outweighs the potential benefits to society.

Against the background of this emotionally charged debate, many employers want to know whether mandatory vaccination is a possibility for their workplace– especially if they are returning to high-density office-based work or will have contact with large numbers of other people in the course of performing their duties.

Lawful and reasonable directions

An employer can require its employees to carry out ‘lawful and reasonable’ directions that affect their bodies. These directions can extend to the employee’s activities outside of work if that is reasonable or if the activities would have an effect on their performance of duties. For example, an employer can require an employee not to drink alcohol for a period prior to their working hours, if that would affect their ability to safely perform their work. An employer can also require a worker to shave their facial hair if it would interfere with the use of safety equipment.

If an employee refuses to carry out a lawful and reasonable direction, this is a valid reason for termination of their employment.

Obligation to ensure health and safety

An employer has a duty under Work Health and Safety laws to ensure, so far as is reasonably practicable, the health and safety of its workers. This duty extends to protecting employees from infectious diseases, so far as is reasonably practicable. Most employers are already making efforts to comply with this duty, by implementing control measures such as providing hand sanitizer, allowing employees to be socially distant in the workplace and allowing employees to work from home where possible.

A direction to an employee motivated by health and safety reasons will often be considered a “lawful and reasonable direction”. However, it is unclear whether the employer’s WHS duties extend as far as requiring employees to be vaccinated. If it is necessary to protect the health and safety of clients or co-workers, a direction to receive a vaccine could potentially be considered a lawful and reasonable direction. However, Safe Work Australia (the statutory body established to develop national policy relating to WHS) currently states that it is “unlikely” that the work, health and safety laws require employers to ensure their workers are vaccinated.

Government and public health orders

The Federal government has so far taken a very conservative approach, stating that vaccines are not mandatory and that any related public health orders will have to be issued by the relevant State governments. The Fair Work Ombudsman has also issued a statement that: “the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus.”

However, some State governments are already requiring mandatory vaccinations for certain high-risk groups of workers:

  • Queensland has issued a public health direction for health workers working with diagnosed cases of COVD-19.
  • Western Australia has issued a public health direction for quarantine centre workers.

Other State governments may make similar orders if outbreaks of the virus continue to occur.

High-risk industries

Organisations that are involved in caring for vulnerable people have a special duty of care to their clients or charges to avoid risks to their health and safety. Aged care homes, kindergartens and hospitals are examples of organisations in this category.

There is already precedent for mandatory vaccinations applying to workers in these high-risk industries, as many organisations require workers to receive an influenza vaccine each year. A number of recent decisions of the Fair Work Commission have confirmed that this is a lawful and reasonable direction unless the employee has a confirmed medical reason to refuse the vaccine.

The current state of play for mandatory vaccinations

The legal status of vaccinations and work is still in a state of flux. Given the cautious approach by the Federal Government and its agencies, any decision to mandate a COVID-19 vaccine for employees would need to be approached with care and diligent analysis of the risks involved.

For employers in high-risk industries, recent cases indicate that a mandatory vaccination requirement will likely be enforceable. State governments may potentially pre-empt this development by issuing health directives applicable to workers in high-risk industries, as they have already done in some limited cases. 

Some employers are already pushing ahead with mandatory vaccination policies, based on their own assessment of the risks. For example, Alliance Airlines (an ASX listed company providing flights servicing the mining sector) announced in May 2021 a vaccination policy applying to coronavirus and influenza shots, informing its workforce that they faced disciplinary action if they fail to comply. While this policy has not yet faced a legal challenge, it is expected that there will be rapid developments in this area over the next 6-12 months as the level of ongoing risk posed by the virus is clarified.

Elizabeth Ticehurst is an employment law expert and the Principal at Activate Workplace Law.

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