Can employers make the COVID-19 vaccine mandatory in the workplace?

As it currently stands, employers cannot force their employees to be vaccinated against the coronavirus.

While the question of whether an employer can direct an employee to have the COVID-19 vaccine has not been answered by a court or tribunal, employers should consider these factors first before such a direction is given to employees.

Firstly, is there a law (such as a state or territory public health law / order) which requires an employee to be vaccinated? Secondly is there an enterprise agreement, or employment contract which includes a provision about requiring vaccinations? If no law, agreement or employment contract applies that requires the employee to have the COVID-19 vaccine, it is not lawful or reasonable for an employer to give their employees a direction to be vaccinated, save for safety considerations.

Where the Fair Work Commission has recently considered the influenza vaccinations being made mandatory at the workplace by employers, it has expressed views that a vaccination may be an inherent requirement of employment, subject to the nature of the role and workplace i.e. it will decided on a case by case basis.

Employers need to be alert to issues that may arise if they make it mandatory for their employees to have the COVID-19 vaccine. For example, an employer may face difficulty defending an unfair dismissal claim on the basis that the vaccination is an inherent requirement of continuing employment. An employer carries the risk of exposure to discrimination claims if an employee declines the vaccine based on medical or religious grounds and is penalised or dismissed.

There is also a risk of workers’ compensation claims from employees who experience adverse side effects from the COVID-19 vaccine if the vaccine is taken at the employer’s direction and in circumstances where the vaccine is not mandatory.

So what can an employer do in circumstances where there is no legal right for them to direct their employees to have the COVID-19 vaccine?

We recommend that employers:

  • implement effective control measures at the workplace to reduce the risks of COVID-19;

  • provide verified information to employees about the benefits and risks of COVID-19 vaccinations;

  • provide training to ensure employees are properly informed of what they must do when they are in the workplace to reduce the spread of COVID-19; and

  • encourage employees to speak to their doctors if they have any concerns about having the COVID-19 vaccine.

Harwood Andrews can assist employers draft a vaccination policy for their workplaces.

For further information please contact:

Deepa Travers
T 03 5225 5233

Jim Rutherford
Principal Lawyer
T + 03 5226 8579

Paul Gray

Principal - Harwood Andrews

Paul is a Principal at Harwood Andrews. He brings a commercial approach to the law from a broad set of experiences as a business owner, private legal advisor and in-house counsel, and having worked with management teams over many years. Paul is valued for distilling issues down to what is really important and being prepared to make a risk call based on judgement and experience.

Paul’s key areas of practice include:
- commercial contracts and advice;
- business and share capital structuring;
- sale and purchase of business;
- procurement and service arrangements;
- technology, intellectual property, data protection and start-ups;
- consumer law;
- corporate advisory, including , company secretarial and directors' duties, shareholder relations; and
- capital raising and financing requirements

Paul also manages Harwood Andrews’ corporate counsel advisory service, built on a decade of experience as a client and managing legal functions within one of Australia’s biggest corporations.

Paul believes that evolving how legal services are delivered can be a win-win for lawyers and their clients, particularly how on how technology impacts the legal profession, legal advice and the delivery of efficient legal services.

Paul’s professional commitments include:
- Member of the Law Institute of Victoria
- Member of the Law Institute of Victoria’s Technology and the Law Committee

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