Can Employers Mandate COVID-19 Vaccinations for Employees?

If you are thinking about giving a direction to your employees to have the COVID-19 Vaccination and/or implementing a mandatory vaccination policy then seek specialist Workplace Legal advice.

Roberts Legal is able to assist in providing advice in relation to your work health and safety obligations including whether it is lawful for your business, in the particular circumstances, to provide a direction to employees to be vaccinated. We can also assist in the development and implementation of a mandatory vaccination policy.

Work Health and Safety Act 2011 (NSW)

In states and territories that have adopted the model work health and safety legislation such as NSW, where the Work Health and Safety Act 2011 (NSW) (‘the Act’) operates, there is an obligation upon employers to ensure so far as is reasonably practicable the health and safety of all workers and other persons who may be put at risk at a workplace. This obligation falls upon employers as a Person Conducting a Business or Undertaking (‘PCBU’) are considered the primary duty holder under the legislation.

It may well be regarded by regulators, that the introduction of a workplace mandatory vaccine policy would be considered a reasonably practicable measure to be taken by a PCBU to ensure a safe workplace.

When evaluating what is reasonably practicable when managing a risk such as COVID-19, factors considered include, but are not limited to:

Cost

Cost is considered when evaluating what is reasonably practicable, and as the cost of the vaccine is being met by the Federal Government this would give weight to the argument that a direction to receive the vaccine is reasonable.

Nature of Work

The nature of the business in terms of a worker’s exposure to the risk of contracting COVID-19 is also considered, such as the health and aged care sectors where it is now mandatory for those employed in the residential aged care sector to be vaccinated by mid-September.

Own Safety

Workers also have obligations under the Act to take reasonable care for their own safety and that their acts or omissions do not adversely affect the health and safety of other persons.

Reasonable Instructions

Workers are also required to comply so far as they are reasonably able with any reasonable instruction given to them by a PCBU /their employer and to cooperate with any reasonable policy.

A failure by a worker to follow a mandatory vaccination policy could arguably put themselves at risk of a breach and prosecution under the Act.

There is a term implied in law in all contracts of employment requiring an employee to obey a lawful and reasonable direction of their employer. This direction goes to the heart of the employment contract, and gives effect to the right of an employer to exert a level of control over employees (which is a key factor in the existence of a contract of employment -v- an independent contractor agreement)

Employers will have to apply the lawful and reasonable test to all directions given to employees including directing an employee to receive the COVID-19 vaccine.

A direction will be lawful to the extent that it falls within the scope of the contract of service and involves no illegality.

The reasonableness of the direction should be assessed on a case-by-case basis considering a variety of factors including, but not limited to:

• the nature of the work being performed,
• the nature of the clients and other stakeholders,
• whether employees can work remotely,
• the advice and requirements of governments and medical bodies of the time,
• how advanced the success of aconite vaccination is at the particular time, and
• any other related circumstances.

If an employee refuses to be vaccinated and is treated adversely by the employer as a result, depending on an employee’s reasons for objecting to being vaccinated, the employee may bring proceedings against the employer either by way of anti-discrimination legislation, an unfair dismissal application or a breach of the general protections provisions of the Fair Work Act 2009 (Cth).

Hopefully employers will be given some further guidance in the near future from respective State governments and/or their regulators through legislation, regulations and/or Work Health & Safety Codes of Practice for the management of these risks. However, in the interim employers should consider the following;

• whether is appropriate for their business to implement a policy that addresses workplace vaccinations and what measures can be taken to reduce the work health and safety risk relating to COVID-19.
• training employees on measures to effectively reduce the spread of COVID-19 including providing accurate information on the benefits and the risks of vaccination.
• whether they should arrange for employees to be voluntarily be vaccinated against COVID-19 during work time.
• whether it is appropriate to provide incentives to entice employees to voluntarily be vaccinated.
• avoid any unintended unlawful discriminatory impact on employees who may have a reasonable excuse not to be vaccinated either due to health, religion or other protected reasons.