The first phase of the Federal Government’s COVID-19 vaccination program has been rolled out.

The introduction of the vaccination program may leave employers contemplating the possibility of mandating the COVID-19 vaccination in the workplace for their employees – but do they have the power to do so?

Federal Guidelines

On 19 February 2021, Federal Minister for Industrial Relations Christian Porter announced the release of updated guidelines for employers and employees in response to the COVID-19 vaccination program. He stated that the guidelines reinforce the Federal Government’s broader policy that vaccination should be voluntary. These guidelines are available on the Fair Work Ombudsman and Safe Work Australia websites.

Under these guidelines, it is unlikely that employers will be able to require their employees to be vaccinated. This is because there are currently no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against COVID-19.

However, there are limited circumstances where an employer may direct their employees to vaccinate. Employers may only do so if the direction to vaccinate is lawful and reasonable. This means that it needs to comply with the relevant provisions in the employer’s contracts, awards, and agreements, and any relevant legislation or public health orders. It must also be a practicable measure to eliminate or minimise risks to health and safety in the workplace.

High Risk Workplaces

Some circumstances where it is likely that the direction will be considered reasonable include where employees interact with people who are at an elevated risk of being infected with COVID-19 (such as quarantine workers), or where employees have close contact with people who are most vulnerable to the health impacts of infection (such as health care workers).

Employers may be able to take disciplinary action against employees who refuse to vaccinate if the employee’s refusal breaches a law, public health order, or a clear and repeated lawful and reasonable direction requiring vaccination.

Employers may also be able to ask employees to provide evidence regarding whether they have been vaccinated, or their reason for refusing vaccination, if the employer complies with the relevant privacy laws.

Current View

In conclusion, it is possible that some employers may be able to mandate the vaccine for their employees. However, it is more likely for this to occur in workspaces where the vaccine has already been made available, such as the health care and aged care sectors. It is less likely to occur in industries where employees operate in an environment at a relatively lower risk of infection, such as a corporate office.

Keystone Lawyers can assist by providing advice to employers and employees regarding their rights and obligations under the evolving COVID-19 laws and guidelines.