Will employers be able to require staff to be vaccinated against COVID-19? It boils down to the nature of the job.
When it comes to COVID-19 vaccinations, the countdown is well and truly on, with priority groups in Australia expected to start receiving the vaccine by the end of February.
With more than 106 million cases worldwide and more than 2.3 million deaths, it is fair to say Australia – with under 30,000 cases and fewer than 1000 deaths – has handled the crisis well.
Yet with the restrictions on the freedom of movement and other civil liberties, increases in unemployment and an A$184.5 billion budget deficit for 2020-21, among other implications, many of us eagerly await the vaccine as a way to get back to something resembling a normal life.
With Australia in an enviable position of having the outbreak under control, some people may not see the urgent need for the jab. But what if your employer disagrees?
The government position on mandatory vaccination
It is unlikely the Australian Government would make vaccination compulsory.
Prime Minister Scott Morrison raised eyebrows with his “as mandatory as you can possibly make it” comment in August last year, but he quickly clarified that with "there are no compulsory vaccines in Australia".
After consulting with the Australian Health Primary Protection Committee (AHPPC), an advisory body made up of chief medical officers across Australia, Morrison added that there were also no immediate plans to make vaccinations for residents and workers in aged care compulsory either.
Not surprisingly, he left wiggle room for that to change, adding: "I have no doubt if there were concerns about the wellbeing of vulnerable Australians, particularly elderly Australians, that they [AHPPC] would make such a recommendation."
Geoff Baldwin, employment law specialist with Stacks Law Firm and a former senior public servant, suspects the government will likely stay clear of trying to make vaccinations compulsory.
“I would be very surprised if they [the government] tried to legislate. In the first instance, it would probably have to be done at a state level, because all the health orders are state-based,” Baldwin says.
Case studies: refusing to vaccinate against influenza
There is no firm legal stance on whether vaccinations by employers could be mandated. That is because a specific test case for mandatory vaccinations in Australia doesn’t exist.
There have, however, been two unfair dismissal cases that were taken to the Fair Work Commission (FWC) when two employees lost their jobs after refusing to get influenza vaccinations.
The first case involves an early learning centre where the employee objected to the vaccination based on a range of human rights grounds. The application was briefly considered before being dismissed by FWC deputy president Ingrid Asbury in April 2020 because it was submitted out of time. She noted, in part, that it “…is at least equally arguable that the respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason.”
The second case involves an aged care worker and is ongoing, but is noteworthy for its different tack. The aggrieved employee refused the flu shot that had been made a new condition of employment, saying she had been adversely affected by flu shots as a child. She has not provided medical evidence to date to back up her claims. This case will be considered fully once it is set for a hearing. There are still no binding FWC decisions on the issue.
Enforcement at “low-risk” workplaces
Baldwin says that, from a legal perspective, it will come down to what is “lawful and reasonable”. He says an employer could, in theory, mandate that employees be vaccinated for COVID-19 within a set time or their employment would be terminated.
However, if an employee challenged that mandate, a court would consider factors including the nature of the business, the risks to the employer and other strategies the employer is able to implement to mitigate the potential spread of the disease in the workplace.
It is also likely that employees would need to provide evidence that being vaccinated could harm them. This evidence would then need to be weighed against the risks to others.
While some heavily people-facing workplaces, such as health and childcare, may have reasonable grounds to enforce vaccinations, Baldwin doubts that other, less “hands-on” jobs would be judged on the same criteria.
“If risk was low, I would think there’d be a real doubt that [the] FWC or court would uphold a dismissal,” he says.
A spokesperson for the Fair Work Ombudsman says it will “continue to provide guidance about the interaction between COVID-19 vaccinations and workplace relations issues as information about the approval and rollout of a vaccine emerges.”
Enforcement by an employer would be on a circumstance-by-circumstance basis and would factor in laws, enterprise agreements or employment contracts, lawful and reasonable directions by employers and whether the employee offered a legitimate reason for not being vaccinated, the ombudsman said.