Let’s delve into a hot topic question: can you, as an employer, legally require the COVID-19 vaccine for your employees? Employee rights are something vital to the Australian Fair Work system, with our government agencies doing their best to regulate, enforce and protect them. This becomes even more critical in the midst of a global COVID-19 pandemic. But when do these rights, such as the right to choose to be vaccinated, need to be weighed up against workplace health and safety?
Can an employer require an employee to receive the COVID-19 vaccine?
In the current circumstances, there are no laws or public health orders in Australia requiring your employees to be vaccinated. As an employer at the moment, therefore, you should assume that you won’t be able to mandate your employees be vaccinated against the virus. However, there are limited circumstances where you may be able to legally require an employee to receive the COVID-19 vaccine.
The COVID-19 Vaccine and the Relevant Factors for Mandating it
Whether you can legally require your employees to be vaccinated against coronavirus is highly fact dependent, taking into account the particular workplace and each employee’s individual circumstances. Relevant factors you should consider include:
- whether a specific law (such as a state or territory public health law) requires an employee to be vaccinated
- whether an enterprise agreement, other registered agreement or employment contract includes a provision about requiring vaccinations
- if no law, agreement or employment contract applies that requires vaccination, whether it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated (which is assessed on a case by case basis).
Additional considerations may include whether employees have a legitimate reason for not getting the COVID-19 vaccine (for example, a medical reason), and how protections for employees under anti-discrimination laws may apply.
Obtaining Legal Advice on the COVID-19 Vaccine
As an employer, you should obtain your own legal advice if:
- you are considering making coronavirus vaccinations mandatory in your workplace, or
- you operate in a coronavirus high-risk environment (for example, health care or meat processing).
Notably, you as an employer have a right to issue lawful and reasonable directions to your employees – but what is lawful and reasonable may be different in different workplaces.
So, the answer to our question ‘can you, as an employer, legally require the COVID-19 vaccine for your employees?’ is a difficult one. Essentially, it is fact dependent upon your circumstances and will change with health directions, legislation and government mandation.
As an employer, you need to observe and understand the laws and contracts surrounding your employees. Especially since this is a new and evolving area of employment law, it is best to consult a specialist such as an employment lawyer or advisor to ensure that you are operating within the law. The expert team of lawyers at The Quinn Group, can provide you with up to date advice tailored to your individual circumstances.
For advice with respect to any area of employment law, please contact one of our experienced lawyers by submitting an online enquiry form, calling us on 1300 QUINNS or alternatively, +61 2 9223 9166 to arrange a teleconference or appointment.