Can your employer make you take the COVID-19 Vaccine?
This is a controversial topic right now attracting attention, thoughts and opinions from people in various industries however the answer to this question it is not as straight forward as you may think.
Currently there is no authoritative guidance or case law on whether COVID-19 vaccinations by employers can be mandated and will be assessed on an individual, case by case basis, each carrying its own set of factors, which may differ to yours.
The approach to this question is not dissimilar from the precedent setting approach toward the flu vaccination.
In the case of Arnold v Goodstart Early Learning Limited (April 2020) the Fair Work Commission heard this matter which involved an employee who refused to consent to a work mandated flu vaccination.
The matter was dismissed because the employee missed the limitation period to file and unfair dismissal application however, the deputy president at the time said that the flu vaccination was:[1]
“necessary to ensure that it [the respondent] meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/or medical conditions.”
The deputy president also noted:
“… at least equally arguable that the respondent’s (the employer) policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason.”
The upshot here is that depending on the job and industry you are in, employers may be entitled to make the COVID-19 vaccination mandatory for employees to ensure regulatory compliance, minimise risk and ensure your safety as best as they can.
What is lawful and reasonable?
So what is lawful and reasonable direction from my employer?
This will depend on the circumstances.
The Fair Work Ombudsman published its guidance on COVID-19 vaccinations & the workplace, (26 January 2021) where it was stated:
“There are currently no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against coronavirus. The Australian Government’s policy is that receiving a vaccination is voluntary, although it aims to have as many Australians vaccinated as possible.” There are, however, limited circumstances where an employer may require their employees to be vaccinated.”
This does not mean the global pandemic automatically makes a vaccination mandate reasonable but rather, the Fair Work Ombudsman stated that the vaccine mandate ought to be “… a reasonably practicable measure to eliminate of minimise risks to work health and safety under work health and safety laws”.
So this brings us to the prevailing question, what do we need to consider in assessing whether an employee mandated
COVID-19 vaccination is reasonable?
It is highly likely a court would consider the following factors (amongst others):
- Necessity of the vaccination
- Workplace health and safety
- Nature of the employment
- nature of employment;
- the employees philosophical beliefs, religious beliefs, disability status and other factors
- legislation and relevant regulations; and
- the relevant modern award and enterprise agreement.
The Fair Work Ombudsman noted that it would may be reasonable for the following employer types to mandate the COVID-19 vaccination in the workplace:
- Broder control employees or hotel quarantine workers in a work environment where employees are likely to be at a high risk of contracting COVID-19 and;
- Aged care employers or health carer where employees are likely to be at a high risk of contracting COVID-19 and interact with individuals that are vulnerable to contracting COVID-19.
What should i do if i disagree with my emplpoyer and we are in dispute?
If you are working and discover that your employer mandated the COVID-19 vaccination, it is beneficial to you to seek legal advice regarding your options from us here at AKS Law. Employment law is complex, and this situation is likely to not simply be a matter of vaccination, it may unfortunately cross over into the discrimination realm subject to the circumstances.
What Do I Do Next?
If you are seeking legal advice, AKS Law are happy to assist you.
Call us today on 07 3180 0144 to arrange an initial consultation so you can feel at ease and informed in the workplace.
The content of this article is intended to provide a general guide to the subject matter and must not be relied on as legal advice or otherwise. Specific advice should be sought about your circumstances.
