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10 September 2021

Mandatory vaccination?

Employment Law
Federal

Asked

Mandatory vaccination?

Can an employer make it a condition of employment that an employee be vaccinated against COVID–19?

Can the employment be lawfully terminated on the basis of the employee refusing or putting off vaccination?

Answered

Thank you for the question.

This is a complex and emerging situation.

There is currently no specific legislation to allow employers to mandate COVID–19 vaccinations. However, employers have legal obligations under work health and safety legislation to ensure the health and safety of their employees or contractors and to ensure that the health and safety of members of the public is not put at risk from the conduct of their business. There is a strong argument that includes managing the risk of exposure to, and the spread of, COVID–19 in the workplace.

At common law, employees are required to obey lawful and reasonable directions of their employer and, subject to certain qualifications – such as pre-existing health conditions – this would probably extend to a direction to be vaccinated against COVID–19. Such a direction is more likely to be considered reasonable for employees in certain industries – say aged care and hospital workers, for example.

Most employment agreements and work contracts include a provision that the employee or contractor comply with the employer’s lawful directions, so if the employer considers the employee being vaccinated is necessary to comply with the work health and safety laws or operational requirements of the business, then the employee may be in breach of the terms of their employment if they refuse. They may therefore become liable to dismissal.

However, if an employee can successfully ground their refusal to comply with a direction to be vaccinated on race, ethnicity, religion or impairment, then any dismissal for failure to obey a direction to be vaccinated, even if otherwise reasonable, might be discriminatory and therefore unlawful.

Even if dismissal is lawful, an employee might be able to seek reinstatement because the dismissal was unfair. For example, if there were alternatives available to dismissal, such as whether the employee could have been allowed to work remotely.

Regards

Mentor