Can employers require their employees to get the COVID-19 vaccine?

By Karl Rozenbergs and Anthony Hallal

Whether a private employer can direct its employees to be vaccinated is a multi-faceted issue.

The central question is whether an employer’s direction to be vaccinated is lawful and reasonable.

Employees have a legal obligation to comply with their employer’s directions if those directions are lawful and reasonable. An employee who fails to do so may be subject to disciplinary action, up to and including dismissal.

Lawful and reasonable direction

Whether a direction to be vaccinated is lawful and reasonable will vary depending on the circumstances. For example, what is reasonable in the context of a business that involves extensive physical interaction, such as an aged care facility, will differ from reasonableness in the context of an office.

Various factors may impact the lawfulness and reasonableness of a particular direction, including:

• the employer’s workplace health and safety obligations;
• the employer’s common law duties of care;
• whether the direction constitutes discrimination of the sort prohibited by Australia’s anti-discrimination regime;
• human rights legislation such as Victoria’s Charter of Human Rights and Responsibilities (depending on the jurisdiction and the nature of the employer);
• any relevant provisions in an applicable employment contract, modern award or enterprise agreement;
• any relevant consultation obligations;
• the availability of reasonable exemptions to the direction, and the availability of effective alternatives to vaccination (such as the use of personal protective equipment); and
• whether the employee can perform the inherent requirements of their position without being vaccinated.

Practical issues

Even if it is determined that a particular employer can lawfully and reasonably direct their employees to be vaccinated, other practical issues need to be considered. For example:

• How will the employer determine whether their employees have actually been vaccinated? One option is to simply take employees on their word, or to require employees to provide a written acknowledgement that they have had the vaccine. Some employers will be comfortable with that option, but it is likely that others will want more. A second option is to require employees to complete a statutory declaration confirming that they have been vaccinated. A third option is to require formal medical evidence or certification.
• Privacy is another significant issue that employers must consider. Australian law regulates the collection, use, storage and handling of personal or health information. Employers must ensure that they are complying with those laws. They may require specific legal advice in that regard.
• Employers must consider how they will respond to employees who refuse the vaccine. One option that may be available to some employers is to move, or formally redeploy, the unvaccinated employee to a part of the business in which the employee would be physically distanced from others. Disciplinary action including dismissal is another option. Each response to refusal poses different risks to the employer, and should therefore be considered carefully. Additionally, employers must ensure that they are consistent in their response to refusals. If one employee’s refusal is dealt with more aggressively than the refusal of another employee in similar circumstances, then that kind of differential treatment might expose the employer to liability. Developing a workplace policy on vaccinations may be helpful in that regard.

Guidance from the Fair Work Commission

This issue has recently come before the Fair Work Commission on several occasions, but has not yet been determined.

For example, on two occasions, the applications were submitted out of time and so no determination was made.^[1]

More recently, the issue came before the Commission in Glover v Ozcare [2021] FWC 231. Commissioner Hunt dismissed the respondent’s jurisdictional objection, clearing the way for the issue to be considered fully in the context of an employee who refused the influenza vaccine on medical grounds.

Although no binding decision on the issue has been made at time of writing, the Commission’s comments to date have exhibited a degree of sympathy for employers who mandate vaccinations in at least some circumstances.

[1] Arnold v Goodstart Early Learning Limited [2020] FWC 6083; Mesonos Tello v Goodstart Early Learning Ltd [2020] FWC 5515.