Can employers mandate the COVID-19 vaccine?
It is no secret by now that a vaccination against COVID-19 has been in the works globally for a while. In Australia, Health Minister Greg Hunt has indicated that we can expect to see the vaccine by March 2021. This means that it is time for employers to start thinking about what implications this might have for their workplace, namely, can or should an employer require its employees to get the vaccine?
Currently, employers can make directions for employees to have specific vaccinations against common illnesses when they are working in high-risk environments, such as health or aged care. As a result of the COVID-19 pandemic, employers more broadly have been faced with unfamiliar risks and circumstances that have challenged the standards and rationale applicable to health-related directions in the workplace.
Fundamentally, employers will be able to issue a direction for employees to be vaccinated.
However, employers will have to apply the ‘lawful and reasonable’ standard to all directions made in this respect. That is, employers will have to ask themselves whether the vaccination is necessary to eliminate or minimise a realistic risk of COVID-19 infection in the workplace, to the extent reasonably practicable and consistent with the employer’s existing legal obligations.
The question of reasonableness in this context must be asked on a case-by-case basis, considering a variety of factors, including:
- the nature of work being performed by particular employees;
- the nature of the clients and other stakeholders;
- whether employees can work remotely;
- the advice and requirements of government and medical bodies at the time;
- how advanced and successful the vaccination is at the particular time; and,
- any other related circumstances.
Due to the individual nature of reasonableness, there is currently no (and will likely not be) a single correct approach with respect to whether an employer should direct employees to get the vaccination. Accordingly, employers should reasonably expect some push-back if they issue the direction. Reasons for objection may include but are not limited to, for example, human rights, political or religious implications; or a genuine medical or health reason raised under the advice of a medical practitioner.
Enforcement of a direction to be vaccinated will also be based on an assessment of the reasonableness of the direction in the circumstances, considering the personal circumstances of the employee and whether a safe working environment can be provided to the employee without the vaccination.
As an alternative approach to the vaccination, employers should not forget that they have the option of recommending or encouraging the COVID-19 vaccination to employees. By doing so, the employer indicates to employees that they support their staff getting the vaccination, but it is unenforceable, and employees may exercise their discretion to either get the vaccination or not to get it.
Given that the COVID-19 vaccination and its workplace implications are such unfamiliar grounds for all involved, it is extremely likely that the approach presently favoured will evolve further with the body of knowledge supporting the leading vaccinations. Readers should watch this space for more information.
If you require assistance with any of the above, please don’t hesitate to contact a member of Coleman Greig’s Employment Law team, who would be more than happy to assist you today.