Can employers require their staff to receive the COVID-19 Vaccine?
The Federal Government’s policy is that vaccines should be both free and voluntary. However, businesses also have an obligation to keep their workplaces safe and minimise the risk of exposure to COVID-19.
What does this mean for employers?
Employers can only require their staff to be vaccinated against COVID-19 if there is a public health order mandating this for your industry, or because of a duty to comply with lawful and reasonable directions. Employers must also ensure that, if they require their staff to be vaccinated, they also comply with anti-discrimination and privacy laws.
Public Health Orders
If there is a public health order applicable to your industry mandating vaccination, then your workers must be vaccinated against COVID-19 as a condition of their employment.
Currently, in New South Wales there is a public health order requiring the vaccination of health care, education and residential aged care workers to keep staff, patients, students, children and visitors safe from COVID-19. Health and aged care workers and those in the education sector must have received two doses of the COVID-19 vaccine. As of 10 January 2022 all school-based staff will be required to have a third booster shot. Exemptions will be considered if employees are unable to be vaccinated for a medical reason. Businesses should encourage staff to speak to a medical practitioner and ask them to fill in the medical contraindication form if their staff have a medical reason for exemption. If workers are not vaccinated on the required date, and have no approved medical exemption, employers at NSW Health or a Private Health Facility can refuse to offer work. More information on the public health order can be found here.
Some states and territories have also issued public health orders mandating vaccination for high-risk industries or workers. For example on 1 October 2021, the Victorian Government announced that all workers on the relevant ‘Authorised Worker’ list will be required to have their first COVID-19 vaccine dose by 15 October 2021 to continue working onsite. These workers needed to be fully vaccinated by 26 November 2021.
You need to check the public health orders that apply to the state or territory in which your workplace is located. If you have several locations, you will need to take this into consideration.
Lawful and Reasonable Direction
In the absence of a public health order, employers can only require staff to be vaccinated through a lawful and reasonable direction. In high-risk industries, employers can argue that mandatory vaccinations are reasonable to protect the health and safety of workers and others.
Employees have a legal obligation to comply with the lawful and reasonable directions of their employer. Whether a direction to get the COVID-19 vaccine is lawful and reasonable, depends on the facts and individual circumstances. In high-risk workplaces such as hotel quarantine, or workplaces that are in close contact with vulnerable people, it is likely reasonable to ask employees to be vaccinated. Each workplace must consider the reasonableness of making such directions. Even in a commercial office setting in which staff are not in contact with vulnerable, immunocompromised or otherwise at-risk individuals, it could be reasonable to make directions to protect the workforce and their families, or to minimise the cost to the business, direct and indirect, of any workplace shut downs if there were infected workers.
Importantly, employers must comply with anti-discrimination law when issuing directions to employees. As employers must not discriminate against employees based on a disability, it would be against anti-discrimination law to refuse to allow medically exempt staff members to work if they fail to get vaccinated. If an employee has a medical condition that prevents them from being vaccinated, they could rely on anti-discrimination law to refuse an otherwise reasonable direction to be vaccinated. This must be distinguished from an employee who chooses not to be vaccinated.
Whether employers can require their staff to get vaccinated will depend on the specific circumstances of the workplace. If an industry is subject to a public health order, employees must be vaccinated unless they have an exemption. Where a workplace is ‘high-risk’ or requires staff to deal with vulnerable people, employers may be able to direct workers to get vaccinated. If it is reasonable in the circumstance an employer can require employees to be vaccinated.
If employers wish to encourage or incentivise employees to get vaccinated, they may do so according to the Therapeutic Goods Administration’s Rules. These Rules allow employers to offer monetary rewards to fully vaccinated people such as store vouchers or discounts. However, the rewards cannot include alcohol, tobacco or medicines.
If you are considering requiring your employees to be fully vaccinated against COVID-19 and require advice about any of the above, please contact the Sainty Law team.
This post provides general information on COVID-19 vaccinations and discrimination law and other applicable legislation as at the date of the post. It is intended as a guide only. The legal circumstances under which an employer can require staff to get vaccinated is dependent on a range of factors. Please obtain advice tailored to your specific circumstances.
This article was originally posted to One Trust.