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Can your employer force you to have Covid 19 vaccination?

The rate of change wrought by COVID-19 to Australian workplaces cannot be overstated, with ever-changing government restrictions and the growing vaccination framework being developed by Federal, State and Territory Governments in Australia in response to COVID-19 .

An ongoing consideration against this backdrop is whether employers can mandate that their employees get vaccinated against COVID-19.

This issue was recently discussed on 6 August 2021 by a meeting of the National Cabinet. 

As a result, the Prime Minister confirmed the official government advice that there may be some situations where employers may reasonably direct their employees to be vaccinated. These would include taking into account the reasonableness of any such employer direction, and what is permissible under Australia’s anti-discrimination laws. 

The Prime Minister recognised that it was up to employers to make decisions that were informed by what is appropriate for their workplace after a consideration of the issues at hand.

In light of the above, a valuable source of information for employers and employees is the Website of the Fair Work Ombudsman, which provides up to date advice on COVID-19 vaccinations as well as workplace rights and obligations.

That advice was updated on 13 August 2021 to provide further insight for employers and employees. The advice lays out key factors, and 4 key categories of workers that should be considered in determining whether an employer’s direction to an employee to get vaccinated is lawful and reasonable.

Lawful and reasonable directions to get vaccinated

• the nature of each workplace (for example, the extent to which employees need to work in public-facing roles, whether social distancing is possible and whether the business is providing an essential service)
• the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community.
• the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant (find out more at the Department of Health: statement from ATAGI)
• work health and safety obligations (find out more at Safe Work Australia)
• each employee’s circumstances, including their duties and the risks associated with their work
• whether employees have a legitimate reason for not being vaccinated (for example, a medical reason)
• vaccine availability.

When undertaking a case-by-case assessment, it may also be helpful to refer to the 4 tier categories as set out in the government guide

• Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).

• Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).

• Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).

• Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

A workplace may have a mix of employees, with different employees performing work in different tier categories, which could change over time.

The coronavirus pandemic doesn’t automatically make it reasonable for employers to direct employees to vaccinate against the virus.

An employer’s direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected with coronavirus or giving coronavirus to a person who is particularly vulnerable to the health impacts of coronavirus.

An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of the coronavirus.

For employees performing Tier 3 work:

• where no community transmission of coronavirus has occurred for some time in the area where the employer is located, a direction to employees to be vaccinated is in most cases less likely to be reasonable
• where community transmission of coronavirus is occurring in an area, and an employer is operating a workplace in that area that needs to remain open despite a lockdown, a direction to employees to receive a vaccination is more likely to be reasonable.

Regardless of the tier or tiers which may apply to work performed by employees, the question of whether a direction is reasonable will always be fact-dependent and needs to be assessed on a case-by-case basis. This will require taking into account all relevant factors applicable to the workplace, the employees and the nature of the work that they perform. 

Employers should get their own legal advice specific to their workplace circumstances if they’re considering making coronavirus vaccinations mandatory in their workplace.

At this time, there is no indemnity ruling any State. Territorial or Federal government to protect employers who make directions to their employees, regarding the need vaccination against Covid-19.

An indemnity would relate to any adverse effect of a vaccination on the employees. As Medical Practitioners are indemnified, it is important therefore that when directions are given, then the employee should be directed to obtain medical advice as to whether there is any reason for the vaccine not to be administered, and as to what vaccine should be administered

At Koffels, we are closely observing the aforementioned changes to Australian workplaces to better address the growing challenges of our clients who own and run those workplaces and the needs of our clients whose job roles and duties are being redefined by these ever changeable COVID times.