The global COVID-19 pandemic appears to have fundamentally changed the workplace. The agile way in which employers and employees mobilized remote working is to be applauded. For many employers, the shift back to onsite working is the goal for 2021, especially with the Australian rollout of the COVID-19 vaccine expected at the end of March.

Ensuring workplace safety is the priority for all HR departments, and, with that in mind, there is talk around the possibility of mandating the vaccine for all employees.

But what are your rights as an employee? And can you refuse to comply?

Recently the Fair Work Commission considered the case of an early childhood teacher terminated for not getting the flu vaccine. Ultimately, the case was dismissed, but it provides insight into how employers could sensitively approach the topic of workplace COVID-19 vaccines.

The Law

Work health and safety law states all employers have a responsibility to do what is reasonably practicable to create a safe workplace. They also have the power in common law to give employees “lawful and reasonable” directions.

However, there are no existing statutory provisions forcing individuals to become vaccinated, and there is little case law around workplaces and vaccines as it stands. It would be prudent for employers to keep an eye on the Fair Work Commissions’ decisions as there are several flu vaccine cases in the pipeline.

These upcoming cases are likely to have an impact on how employers can approach the COVID-19 vaccine.

If employers were to insist on compulsory vaccination, employees could ostensibly raise an objection on the grounds of individual liberty and human rights.

Can Businesses Force Employees to Vaccinate?

While it’s evident that employers have an incentive to want employees vaccinated, to protect clients and co-workers, along with avoiding possible legal liabilities of potential workplace COVID transmissions, the question remains, can they enforce vaccination?

In all likelihood, no. There are several reasons for this:

  • Forcing people to receive a vaccination could potentially constitute an unlawful injury. A vaccine injection requires an individual’s informed and voluntary consent.
  • If a stringent anti-vaxxer establishes their belief is authentic and worthy of respect, they might succeed at a tribunal.
  • Arguments around religious discrimination could be made. A noteworthy point is that many vaccines use pig gelatine, which could be problematic for several religious groups, along with committed vegans.

Can Employers Indirectly Compel Employees to Vaccinate?

Individual businesses could decide to take indirect strategic measures to encourage the vaccination of their employees. They could do this by refusing staff entry to specific work areas or particular roles if they cannot provide evidence they have been vaccinated. Employers could also be tempted to issue disciplinary action if an employee repeatedly refuses to be vaccinated – measures such as these need to be carefully considered before being implemented.

Suppose an employee receives disciplinary action due to their refusal to be vaccinated because of a disability or a protected religious or philosophical belief. In that case, they may be able to issue a direct or indirect discrimination claim. They could also claim constructive unfair dismissal if they end up resigning in protest. It would be better for an organization to supply impartial, factual information regarding vaccinations’ benefits to help their employees make informed decisions.

Read more about unfair dismissal.

What if you Work with Clinically Vulnerable People?

Australian employers may have a duty to ensure a safe working environment by enabling their employees’ vaccination in circumstances where they will have close contact with clinically vulnerable people.

Although, this is a complex matter and there are other points to consider, for example:

  • Does the vaccine reduce transmission, or does it merely suppress symptoms in a carrier?
  • Are there any other less-invasive steps that could be taken to minimize risk?

This information would inform an employment tribunal as to the reasonableness and proportionality of mandated vaccines in a high-risk workplace.

Suppose the effect of the vaccine is to also suppress transmission over and above social distancing measures. In that case, theoretically, it could be possible to justify disciplining an employee where they refuse the vaccine, if their refusal is unreasonable, or, if proportionate, relocating them to lower-risk roles. Steps such as these will likely be proportionate in only extreme circumstances where no other reasonable steps to protect the vulnerable are available.

Still, Considering Mandating Vaccination for your Employees?

This is not a decision to be made lightly. As with other invasive procedures in the workplace (blood, urine, or saliva collection), you’ll need to have a solid set of policies and procedures surrounding vaccination, and create a considered, sustainable strategy to roll them out.

Start with implementing a good communication strategy. Being open and honest with your employees about your motivation and reasons for mandating the vaccine will facilitate a smooth uptake. Create a safe and supportive environment for employees to voice their concerns and ask questions freely.

Document a transparent process outlining what will happen if an employee chooses to refuse the vaccine. This should articulate the steps you will take following an employee’s vaccination refusal. It could include role adjustment, employee redeployment, or termination of employment.

Encourage employees to get vaccinated during work hours. The Federal government said the vaccine will be free for all Australians, which means it’s unlikely there will be an out-of-pocket expense for employers.

For advice and guidance regarding the employee COVID-19 vaccination contact ProcessWorx on (08) 9316 9896 or enquiries@processworx.com.au

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