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Can companies mandate vaccination on employees?

Preamble

Giant companies like Disney, Google, Facebook and Netflix have all made vaccinations a requirement for their employees to return to their US offices. Recently, SPC has joined them being the first Australian company to mandate vaccination for their employees. SPC is a food manufacturer, best known for brands including Ardmona, Goulburn Valley.

In a statement, the company SPC said its senior leadership team and board “recognise the significant threat the COVID-19 Delta variant poses to both the business and the broader Australian community”.

A fully vaccinated workforce will ensure that SPC can continue to deliver an essential service while helping Australia return to an open economy…”

In this article we will discuss about whether companies have the right to mandate COVID-19 vaccination for employees.

Can an employer require an employee to be vaccinated?

  1. Mandatory industries

While the Australian Government’s policy is that receiving a COVID-19 vaccination is voluntary, nevertheless those from high-risk workplaces or industries, State and territory governments may make public health orders requiring the vaccination of workers.

In Victoria, the law mandates quarantine workers, aged care workers, health care workers to receive the COVID-19 vaccination.

  1. Others

In Glover v Ozcare [2021] FWC 231, an in-home care worker argued that she could not be vaccinated due to allergies. As a result, she was not allowed to return to work without receiving the influenza vaccine. Fair Work Commission concluded that Ms Glover was not unfairly dismissed as Ms Glover was working in high-risk workplaces where aged care clients would be particularly easy to contract influenza. Therefore, it was lawful and reasonable for Ozcare to mandate vaccination for all client-facing employees.

The Court commented that: “…each circumstance of the person’s role is important to consider, and the workplace in which they work in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction. Refusal of such may result in termination of employment, regardless of the employee’s reason, whether medical, or based on religious ground…”

Hence, the implication is that there are at least some circumstances where there is a vaccination is an inherent requirement to their role and failure to do so may result in valid dismissal. 

There is no definite answer on whether requiring employees to be vaccinated for COVID-19 is lawful and reasonable, it is all determined on a case-to-case basis. Nevertheless, one can have regard to factors including:

  1. Whether a specific law requires an employee to be vaccinated
  2. Whether there is another agreement or employment contract which stipulates the requirement of vaccination
  3. If there is no law, agreement or employment contract applies that requires vaccination, then it is necessary to consider whether it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated.

 

What is lawful and reasonable direction?

Whether a direction is lawful and reasonable needs to be assessed on a case-by-case basis.

Firstly, for a direction to be lawful, it needs to comply with any contract, award or agreement, and any Commonwealth, state or territory law that applies (for example, an anti-discrimination law).

Secondly, it is necessary to consider whether the direction is a reasonably practicable measure to eliminate or minimise risks to work health and safety under work health and safety laws.

Work health and safety considerations are an important factor to consider in working out whether a direction is reasonable.

Some circumstances in which a direction may be more likely to be reasonable such as:

  • employees interact with people with an elevated risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control), or
  • employees have close contact with people who are most vulnerable to the health impacts of coronavirus infection (for example, employees working in health care or aged care).

 

Anti-discrimination law

Employers who require their employees to be vaccinated needs to ensure they have not discriminated anyone especially those who has a disability, medical conditions or who are pregnant.

By implementing mandatory COVID-19 vaccinations of those individuals means you may have engaged in ‘indirect discrimination’ under the Sex Discrimination Act, Disability Discrimination Act and Age Discrimination Act.

Indirect discrimination occurs when a person is required to comply with a general requirement or condition (such as mandatory COVID-19 vaccinations), and they do not or is not able to comply with the requirement or condition.

This can be done by way of termination, suspension, or performance management would have constituted unlawful discrimination.

 

If not vaccinated and your employer fires you, does that amount to unfair dismissal

If there are specific laws or a clear and lawful and reasonable direction requiring vaccination, then failure to comply may result in disciplinary action such as lawful termination of employment.

At the same time, employers must consider the terms, employees’ rights and obligations under any applicable:

  • enterprise agreement or other registered agreement
  • award
  • employment contract
  • workplace policy
  • public health order.

If an employer has provided a lawful and reasonable direction to be vaccinated and an employee refuses, an employer can ask an employee to provide evidence of the reason for their refusal.

There are pros and cons in getting vaccinated, but employers need to bear in mind that the coronavirus pandemic does not automatically give you the right to mandate vaccination for your employees.  Employers must put the health and safety of employees as priority and should consider whether there are other measures that can be taken to protect the health and safety of employees prior to mandating vaccinations. Should you have any employment law related questions, please feel free to contact Fumens Lawyers.

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