The absence of a legal requirement does not mean that people will be not receive directions to have the COVID-19 vaccine from employer’s and other areas in society.

Pursuant to Workplace Health and Safety laws, an Employer has an obligation to provide a safe workplace and employees have obligations to assist their Employer in maintaining a safe working environment. Further, Employers have a right to issue lawful and reasonable directions to employees. However, the requirements of a safe workplace and what constitutes a lawful and reasonable direction is highly dependant upon the circumstances, the individual workplace and requirements of the industry.

As we all know, COVID-19, is a highly communicable disease which can have serious consequences to a person’s health. In light of this, many Employers are asking whether they can keep their work environment safe if their staff, clients or customers are at risk. Employers who employ elderly persons or those with compromised immune systems, as well as those whose businesses interact with such persons or in highly public places are now re questioning whether it is necessary for their staff to be vaccinated.

Does my Employer have a say?

The Fair Work Ombudsman has put out a statement indicating that the overwhelming majority of employers should assume they won’t be able to require their employees to be vaccinated against COVID-19. In this brief guide the Fair Work Ombudsman has suggested that some of the relevant factors an employer should consider when considering whether it is able to require COVID-19 vaccination include:

  1. Whether a specific law requires an employee to be vaccinated;
  2. Whether an enterprise agreement, other registered agreement or employment contract includes a provision about requiring vaccinations;
  3. If there is no law, agreement or employment contract applicable that requires vaccination, whether it would be lawful and reasonable for an employer to give a direction requiring vaccination. This would be assessed on a case by case basis.

With respect to point 3 above, whether a direction is reasonable will fall within the scope of the employment and be considered in light of the nature of the employment and common practices. The existence of the COVID-19 pandemic does not necessarily make it lawful and reasonable for a mandatory vaccination direction to be issued. More relevant considerations that may have an impact on a direction being considered reasonable could include:

  • The people with which the employees interact with and whether these persons have an elevated risk of infection; or
  • Employees having close contact with persons vulnerable to the adverse health outcomes of contracting COVID-19; or
  • The employer has exhausted all reasonable means of minimising and managing the risk however the availability and suitability of such control measures are inadequate. Such situations may include where exposure is difficult to manage due to the type of work. This could include employees being required tow ork in close proximity to others. However, given there is no clear confirmation at this stage that the vaccine completely stops transmission this may not be a sufficient position to take.

Many employees already have clauses in their employment contracts requiring particular vaccinations. In some cases, these have not been enforced until recently. In 2020, Ms Nicole Maree Arnold brought an unfair dismissal application against Goodstart Early Learning Limited t/as Goodstart Early Learning in the Fair Work Commission concerning a direction by her employer to have the influenza (flu) vaccine.  Unfortunately, Ms Arnold brought this application outside the 21-day time frame and the matter was not determined by the commission. However, one of the comments in the judgment of Deputy President Asbury indicated that the policy requiring mandatory vaccination may be deemed lawful and reasonable in the context of its operations, which involved the care of children – particularly children who were too young to be vaccinated themselves. The commission would balance the rights of the employee to refuse a vaccine with the duty of care of the employer.

At this stage, no employee has brought a claim before the Fair Work Commission with respect to a direction from an employer relating to the COVID-19 vaccination. As such, there is no solid legal basis to understand what is and isn’t reasonable for an employer to request of their staff to maintain a safe work environment and whether a direction can be given to require staff to be vaccinated. Further, it is likely that this will differ between industries and individual workplaces.

There are significant legal risks associated with an Employer issuing a direction for employees to receive the vaccination in circumstances where that direction is not lawful or reasonable. As the rollout of the vaccine commences and becomes more widely available to the working population, it is expected that the Fair Work Commission will see a significant spike in these types of claims (such as unfair dismissals or general protections claims) by persons who refuse to comply with their Employer’s direction and are subsequently terminated or treated less favourably as a result. These are serious considerations as Employers need to be mindful of when deciding what action they will take. It is anticipated these future cases will provide employers with more clear guidance on what they may reasonably do.

In the interim, the clearest position on the issue comes from cased determined by the Fair Work Commission with respect to mandated flu vaccines. In particular commentary from Deputy President of the Fair Work Commission Ingird Asbury when determining the case of Arnold v Goodstart Early Learning Ltd [2020] FWC 6083, who has noted that it is at “It is my view that it is at least equally arguable that the Respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason.”

As this is likely to be a rapidly evolving area, the advice may change as the year progresses, however, at Adams & Partners Lawyers we are ensuring we remain at the forefront of current advice and case law to ensure we are able to provide the most up to date and relevant advice.

Our Employment Law Team Can Help You

Given the severity of the consequences we encourage employers who are considering giving such a direction to staff, to have the nature of their operations, their business and industry reviewed by our employment law team to assist you in make the best decision possible with all the information available at the time.

Likewise, if you are an employee who has been given a direction to receive a COVID-19 vaccination as a requirement to retaining your position with a business and you disagree or otherwise are unable to have the COVID-19 vaccine, we are also able to assist you with navigating this tricky situation.

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