As the Australian Government plans to start rolling out vaccinations against COVID-19 from March 2021, many employers want to know if they can force workers to get vaccinated.
The answer to this question will depend on a number of factors and your individual business circumstances.
Lawful and reasonable direction
At the core of any employment relationship is the employer’s right to issue a lawful and reasonable direction to an employee.
So you need to consider the type of work being performed and determine whether there is an increased risk associated with that role should the employee fail to be vaccinated.
Opponents to mandatory vaccination often cite human rights infringements as a basis for their objection.
In the employment context, it is true that certain provisions in anti-discrimination legislation in states and territories prohibit discrimination in ways that could intersect with a person’s refusal to be vaccinated.
Similar provisions also exist at the federal level.
For example, the Fair Work Act 2009 (Cth) prohibits discrimination against an employee on the basis of their political opinion or religion. This could include political or religious opposition to vaccinations.
However, an exception will ordinarily arise if the discriminatory action is taken because of the inherent requirements of the particular position concerned.
For example, it may very well be a genuine and reasonable requirement of employment in the childcare sector that educators and other staff members be vaccinated so as to protect vulnerable children from the spread of Covid-19.
Another example, it may be a genuine and reasonable requirement of employment in the aged care sector that all workers must be vaccinated so as to protect vulnerable older people.
In the context of COVID-19, which is considered to be more infectious and more dangerous than influenza, this exception could arguably extend to all employment that involves physical interaction with others.
In other words, it could be an inherent requirement of employment generally that employees be vaccinated against COVID-19 so as to not risk infecting others.
Workplace health and safety
On the occupational health and safety front, controlling the spread of infection in the workplace is an obligation borne by all parties.
Employees owe a duty to their employer to take reasonable care for their own health and safety, as well as the health and safety of persons who may be affected by their acts or omissions in the workplace.
Employees must also cooperate with their employer in respect to any action taken by the employer to comply with a requirement imposed by the legislation.
In light of these duties, it may be reasonable and perhaps even necessary for employers in particular sectors to implement a vaccination policy in order to protect the health and safety of all workplace participants.
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