Can Employers Make Covid Vaccinations Mandatory?

The light at the end of the COVID-19 tunnel is approaching as vaccinations for COVID-19 become available worldwide and Australia continues its vaccination rollout.

Employers and employees alike are keen to return to workplaces safely, and vaccinations are key to that being achieved. One question arising is whether employers can require that prospective and current employees are vaccinated under Australian law.

Future Employees

Could employers refuse employment for future prospective employees because they do not have, cannot have or do not want to receive a COVID-19 vaccination?

The guidance from Fair Work is that in most circumstances, an employer may be able to require a prospective employee to be vaccinated against COVID-19. It is important, however, to consider:

• Whether vaccinations may be an inherent requirement of the business, and whether this requirement is accurately addressed in existing policies and employment contracts;
• Employer obligations and responsibilities under general protections and both federal and state anti-discrimination laws (for example if such a requirement would be discriminatory against protected characteristics such as a disability, pregnancy or religious belief); and
• Any future public health orders and any amended federal legislation such as the Fair Work Act 2009 (Cth) and its regulations which may cut across these laws.

Whether declining employment to a prospective employee, due to their refusal to get vaccinated, breaches anti-discrimination or other laws may differ on a case-by-case basis.

Western Australia and Queensland both have public health orders requiring workers in some high-risk industries such as health services and quarantine centres. However, there are currently no general laws or public health orders in Australia that enable employers to require their employees to be vaccinated against COVID-19 (though this could possibly be a requirement once the vaccine is generally available or if the COVID-19 risk increases again).

It is also important to note that an employer may be liable for a worker’s compensation claim should a subsequently employed individual get sick or have a bad reaction to the vaccine.

Existing Employees

Regarding existing employees, there are two main considerations:

1. Whether employers can by law or by contract have ongoing requirements that employees remain vaccinated (for example, if employees require a second dose during their employment to be fully vaccinated from COVID-19); and
2. Whether employers can require current employees to be vaccinated, and if they do not comply whether that is lawful grounds for termination.

These two scenarios will raise multiple questions:

• Whether existing contracts might have existing provisions that include policies on vaccination;
• Whether employers have policies that could be amended to require employees to be vaccinated;
• What employers’ duties are under WHS laws to provide a COVID-19 safe workplace;
• Whether there are any state or federal Anti-discrimination laws that may apply;
• The availability of the COVID-19 vaccines;
• The risk of harm to an individual caused by a COVID-19 vaccine;
• Whether employees may have other legitimate reasons for not getting vaccinated; and
• future public health orders and legislative enactments.

The legal position on this is evolving as businesses continue to grapple with how to deal with the return to the workplace by the workforce in a COVID safe manner.

If you are an employer who requires a review of policies, contracts, or compliance with anti-discrimination law, general protections law, and WHS Law, we can help. Contact us here.