The Australian roll-out of the COVID-19 vaccine is expected to start very soon and it raises the question: What can and can’t employers mandate regarding vaccinations?
Essentially, we have entered unchartered waters and currently there is no precedent to follow.
We know employers are obligated to ensure a safe working environment, and that employees are obligated to assist in making that environment safe. From cases in the Fair Work Commission regarding the flu vaccine, we know it is deemed reasonable and lawful for employers in high-risk environments (such as child or aged care facilities) to require employees to have the flu jab.
Based on this, we can argue it will be lawful and reasonable for employers to mandate the COVID-19 vaccination, especially with the high risks involved with COVID-19.
However, we also know there have been some cases before the Fair Work Commission where it was acceptable for employees to refuse the flu vaccine. Therefore, you will need to consider your organisation and employees’ circumstances when determining your business’ policies around the COVID-19 vaccine.
In other words, you need to take into account the risk and practicality around vaccination.
What is “lawful and reasonable”?
When defining your business’ COVID-19 vaccine policy, employers will need to consider whether it is ‘lawful and reasonable’ to make a direction regarding mandatory COVID-19 vaccinations. In particular, you will need to examine:
- the specific needs of your customers and stakeholders to whom you have a duty of care
- the needs of your employees and their reasons for refusal
- the type of work being performed by employees
- the level of risk involved
- the advice of government and health departments at the time
- the roll-out and level of success of the vaccination
- any other related circumstances, as they evolve
Can the government force businesses to make the tough choice?
The simple answer is ‘yes’. While we know the Federal and State/Territory Governments have the power under the Biosecurity Act to mandate the COVID-19 vaccination, we don’t know if they will.
The Victorian Government requires all health workers to be up-to-date with their vaccinations and we can assume they’ll add COVID-19 vaccinations to that list. However, making a countrywide mandatory vaccination could be hugely unpopular for the Federal Government. If the Federal or State/Territory Governments don’t mandate the use of the COVID-19 vaccine, it will be up to individual organisations to choose their stance.
Err on the side of caution
These unprecedented times create many unanswered questions so we urge employers to err on the side of caution. Remember you can highly recommend the vaccination, without mandating it. If you choose to mandate the vaccination, make sure you are very clear in your communications with staff on:
- Why you have made it mandatory
- What timeframes they have for vaccination
- The repercussions for refusal
It will also be essential to work with employees who choose not to be vaccinated for health and medical reasons and those who refuse for personal reasons. In the latter case, looking at how their employment can be structured to reduce contact with at-risk people would be essential. For example, can they work remotely to reduce contact with other team members and customers?
Navigating the continued challenges of COVID-19 for HR can put a significant strain on you and your team. The HR Dept is here to support and advise you. For assistance, please get in touch.
