Put simply, no. Your employer cannot force you to have a COVID-19 vaccine. The Federal Government's policy remains that vaccines should be voluntary and free. However, depending on the circumstances, your decision to remain unvaccinated may hold consequences for your employment.
SPC, a Victoria-based canned food processor, recently announced that they will mandate COVID-19 vaccinations for their employees. Qantas CEO Alan Joyce and other employers have also indicated they will consider making the vaccine mandatory for their employees.
On 6 August 2021, the National Cabinet met and discussed the issue of employers mandating that employees be vaccinated against COVID-19. Official government advice is that there may be situations where it is reasonable for employers to require an employee to be vaccinated.
There are a number of factors to consider in determining whether an employer's requirement that an employee be vaccinated against COVID-19 is reasonable – whether it is reasonable really depends on the facts and individual circumstances.
Lawful & reasonable direction
Employees are required to obey the lawful and reasonable directions of their employer. An employee's failure to follow a lawful and reasonable direction may provide a valid reason for dismissal and amount to serious misconduct.
Whether it will be reasonable for an employer to direct an employee to be vaccinated against COVID-19 will depend on the circumstances, including things like the applicable public health orders at the time, any requirements in an employment contract or industrial instrument (such as an enterprise agreement), the risk profile of the industry (e.g. meat processing) and the vulnerability of its client-base (e.g. aged care or disability sector).
Work health and safety laws aim to ensure that the health and safety of workers and the public is not put at risk by work activities. Employers have a duty to eliminate risks to health and safety so far as is reasonably practicable. In high-risk industries in particular, employers may argue a requirement that employees be vaccinated against COVID-19 is reasonable in order to protect the health and safety of workers and others, and that this is necessary in order for the employer to discharge its health and safety obligations.
Before an employer introduces a mandatory COVID-19 vaccination in the workplace, there is often a requirement arising in work health and safety legislation or an enterprise agreement for the employer to consult with employees about the matter first.
In some workplaces, vaccination against other illnesses is already mandatory – abattoir workers in Australia are required to be vaccinated against Q fever and it is a common condition of employment (and in some states a requirement under public health orders) for certain workers to receive the annual flu shot. From 17 September 2021, the COVID-19 vaccination will be mandatory for all residential aged care workers.
Cases
A childcare worker in Queensland was dismissed for repeatedly failing to comply with her employer's direction to submit to the flu vaccination. The worker lost her unfair dismissal case in the Fair Work Commission ultimately due to time limitations, however, Deputy President Asbury made the following observations on the employer's mandatory vaccination policy:
While I do not go so far as to say that the Applicant's case lacks merit, 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. Prima facie the Respondent's policy is necessary to ensure that it meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/or medical conditions. It is also equally arguable that the Applicant has unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position, which involves the provision of care to young children and infants.
In another recent decision, the Fair Work Commission concluded that an aged-care employee's dismissal for refusing the flu vaccine on the basis of a purported anaphylactic reaction to a flu vaccine as a child was not considered harsh or unfair. The employer's mandatory vaccination policy for employees in client-facing roles was found to be lawful and reasonable in the context where the employer's elderly clients were particularly susceptible to influenza. The Commission determined the employee's failure to comply with the employer's lawful and reasonable direction was a valid reason for dismissal.
While the Fair Work Commission is yet to consider a dismissal on the basis of an employee refusing a COVD-19 vaccine, it is cases such as these that provide guidance and insight into how the reasonableness of an employer's direction to require an employee to get the COVID-19 jab might be determined. What is clear from these decisions is that broader public health considerations may outweigh individual considerations, particularly in high-risk industries. As always, each case will turn on its own facts, and it is important to seek advice.
Discrimination
Anti-discrimination laws prohibit discrimination against employees based on protected attributes.
The introduction of a mandatory vaccination policy in a workplace may have unintended consequences for employees, particularly for some employees with disabilities.
'Disability' is broadly defined in the Disability Discrimination Act 1992 (Cth). A vaccination policy that mandates COVID-19 vaccination for all staff, including people with certain disabilities or medical conditions, may result in indirect discrimination. Where an employee refuses a vaccination on a protected ground, such as disability, the employer may need to make reasonable adjustments to accommodate the employee's disability.
It should be noted, however, that it is a defence to a claim of indirect discrimination if the discriminatory action can be shown to be 'reasonable' in the circumstances. In determining what is reasonable, a court may consider public health orders, the reasons for the mandatory vaccine requirement, the nature of the employee's disability or medical condition, the nature of the work performed by the employee and whether the employee has close contact with vulnerable people, among other things.
An employer may also seek to rely on s 48 of the Disability Discrimination Act which provides that it is not unlawful to discriminate against a person on the basis of their disability if the discrimination is reasonably necessary to protect public health.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
