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Can an employer require an employee to be vaccinated?

In the current circumstances, the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus.

While the Australian Government’s policy is that receiving a vaccination is voluntary, it aims to have as many Australians vaccinated as possible.

There are limited circumstances where an employer may require their employees to be vaccinated. Whether an employer can require their employees to be vaccinated against coronavirus is highly fact dependent, taking account of the workplace and each employee’s circumstances. Relevant factors an employer should consider include:

  • whether a specific law (such as a state or territory public health law) requires an employee to be vaccinated (see below)
  • 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).

Further considerations may include whether employees have a legitimate reason for not being vaccinated (for example, a medical reason), and how protections for employees under anti-discrimination laws may apply.

Employers should get their own legal advice if:

  • they’re considering making coronavirus vaccinations mandatory in their workplace, or
  • they operate in a coronavirus high-risk environment (for example, health care or meat processing).

Legislation and public health orders requiring vaccination against coronavirus

State and territory governments may make public health orders requiring the vaccination of workers (for example, in identified high-risk workplaces or industries) in their state or territory. Employers and workers need to comply with any public health orders that apply to them.

In late March 2021, the Queensland Government issued a public health direction mandating coronavirus vaccination for some workers. The direction was issued on 31 March 2021 and affects: health service employees, Queensland Ambulance Service (QAS) employees and hospital and health service contractors. For more information, visit the Queensland Health website.

At this stage, no other Australian state or territory has issued public health orders enabling employers to require their employees to be vaccinated against coronavirus. However, this may change.

Agreements or contracts relating to vaccinations

Some contracts or agreements may contain terms relating to vaccinations or coronavirus vaccinations specifically. Employers and employees should check to see if the term applies to coronavirus vaccinations (for example, a term relating only to flu vaccinations won’t apply). Even where contract or an agreement term applies to coronavirus, employers and employees will need to consider whether the term complies with anti-discrimination laws. A term that is contrary to anti-discrimination laws will not be enforceable.

If in doubt, employers and employees should consider getting legal advice on these issues.

Lawful and reasonable directions

Employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable needs to be assessed on a case by case basis. 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).

There are a range of factors that may be relevant when determining whether a direction is reasonable, including whether the direction is a reasonably practicable measure to eliminate or minimise risks to work health and safety under work health and safety laws.

On its own, the coronavirus pandemic doesn’t automatically make it reasonable for an employer to direct their employees to be vaccinated against coronavirus. Some circumstances in which a direction may be more likely to be reasonable include where:

  • 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).

Work health and safety considerations are an important factor to consider in working out whether a direction is reasonable. Employers and workers can get guidance on specific coronavirus work health and safety issues from Safe Work Australia.

More information

Find out about workplace entitlements and obligations during coronavirus at the Fair Work website here.

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