Can Australian employers direct an employee to get vaccinated?

Can Australian employers direct an employee to get vaccinated?

As the first shipment of COVID-19 vaccines has just arrived on our shores in Australia and vaccinations are scheduled to roll out in the coming weeks, employers are starting to query whether they can direct their employees to be vaccinated.

So, the question is… can you direct your employees get vaccinated?

Whether an 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.

However, the vaccination issue is somewhat complicated as there are numerous factors to consider. The generalised answer to whether you can direct your employees to get vaccinated is likely to be “not generally”. This is complicated further for some employers dealing with vulnerable people, as the answer is more likely to be “yes” for most of their employees on a health and safety basis. Below we will explore and explain when and when not an employer can likely direct their employees to get vaccinated.

Can employers issue a direction to an employee to take the vaccine?

The mere individual health benefit of a vaccine to employees is unlikely to form a sufficient basis to direct the employees to take the vaccine.  Such a direction would be no different to directing employees not to smoke on breaks or not to drink excessively or take recreational drugs at home, where there is no discernible impact upon the workplace. None of these directions could ordinarily be made under existing workplace laws.

To establish a reasonable basis to direct the taking of a vaccine, employers would need to demonstrate there is a real prospect of safety benefit to others who come into contact with the workplace, whether that be other workers or customers/client/patients.

The primary argument an employer is going to rely upon with respect to the vaccine is that to meet their general obligations to ensure, as far as reasonably practicable, the health and safety of workers, workers need to get vaccinated to protect those in the workplace. 

However, the deficiencies in the existing vaccines scientific data mean that there is a real question mark over the legitimacy of directing employees to take a vaccine in many industries.

What about industries exposed to vulnerable persons?

The scenario is likely to be different in industries exposed to vulnerable persons such as aged care, health services or services for persons with disabilities.

The significantly higher risks that such vulnerable persons become exposed to if they come into contact with Covid-19 is likely to justify a more cautious approach by employers..

It is more likely that Courts and Tribunals would consider the direction to take a vaccine to be lawful and reasonable where the direction is being made to protect vulnerable persons, even where the probability of the vaccine reducing infection rates is uncertain (as is the case at present), for health and safety reasoning.

Please call Akyra if you think you are in this category as we will need to ensure you receive specific advice tailored to the facts of your situation.

What is considered 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 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.

Guidance from the Fair Work Commission on vaccinations:

The vaccination 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.

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 the 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.

Should you be recommending employees get the vaccine?

For most industries, we would suggest you adopt the same approach you currently do to things like flu vaccines. Most employers encourage employees to get these as part of employer welfare programs and this may be a reasonable approach to implement for Covid-19 vaccinations. 

What about employees who can’t take a vaccine?

Some employees may be unable or unwilling to take a vaccine because of the higher risks associated with the vaccine being dispensed to them or because of their religious beliefs (e.g. employees with disabilities / elderly employees or some employees of some religions that do not permit vaccination).

Imposing a requirement on these employees to take a vaccine may result in employers engaging in ‘indirect discrimination’ in breach of the Age Discrimination Act 2004, the Disability Discrimination Act 1992 or the Race Discrimination Act 1975. Whether unlawful indirect discrimination arises will particularly depend on:

  • whether groups of people with an employee’s particular attributes are less able to comply with the requirement imposed by the employer than the broader population; and
  • whether the requirement imposed is reasonable in the circumstances.

Accordingly, despite anything else, some people or groups may have a legitimate basis for declining the vaccine irrespective of the work environment they are in. Before disciplining any employee in this category, employers should seek legal advice specific to their circumstances.

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 they have had the vaccine or have employees complete a statutory declaration or submit formal medical evidence letter or certification confirming they have been vaccinated.
  • Privacy is another significant issue that employers must consider. Australian law regulates the collection, use, storage and handling of personal or health information. As an employer you must ensure you comply with such laws and seek 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. Your response to vaccination refusal as an employer poses many risks and you should seek advice from Akyra prior to assist with a strategic way forward.

It can be a daunting prospect for businesses and managers to not only know where to start, but how to manage the vaccination of employees process entirely, not to mention the implications if you get it incorrect.

Every industry and business will have unique requirements and for further guidance or advice on Human Resource Management. Contact us now to book a time to discuss your areas of potential HR concern, thereafter we will provide a way forward where it might be needed.

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