No Jab, No Work? Employees And Covid-19 Vaccinations

The development of not just one but multiple COVID-19 vaccines in the space of a year seems nothing short of miraculous. After a year of lock downs, masks and working from home, many countries are now embarking on ambitious vaccination programs in the hope of returning to pre-pandemic life. However, the prospect of mass vaccinations has sparked fierce opposition from a small but vocal minority, who have raised questions over the safety and long-term effects of the vaccine. Those who oppose vaccination say that their personal right of bodily autonomy outweighs the potential benefits to society. In the face of this emotional debate, many employers are now asking whether they can require their workers to be vaccinated before returning to office-based work.

An employer can require its employees to carry out ‘lawful and reasonable’ directions. These directions can extend to the employee’s activities outside of work if that is reasonable or would have an effect on their performance of duties. For example, an employer can require an employee not to drink alcohol even outside of their working hours, if that would affect their ability to safely perform their work.

An employer has a duty under Work Health and Safety laws to ensure, so far as is reasonably practicable, the health and safety of its workers. This duty extends to protecting employees from infectious diseases, but it is unclear whether it extends as far as requiring employees to be vaccinated. If it is necessary to protect the health and safety of customers or other workers, a direction to receive a vaccine could potentially be considered a lawful and reasonable direction.

There is certainly precedent for this in industries that involve the care of vulnerable people. For example, aged care workers, kindergarten teachers or intensive care nurses and doctors can reasonably be required to be vaccinated for highly infectious diseases such as influenza. However the Federal government has been at pains to emphasise that for the majority of employers, there will be no power to mandate vaccines for their workforce. The Fair Work Ombudsman has announced that there are only limited circumstances where a vaccine order could be enforced, including where a State government health order required it.

It seems likely that when the vaccine becomes available to the bulk of the working age population in Australia, this issue will be further tested and perhaps litigated. In the meantime, employers should carefully consider the specific circumstances and risks of their workplace before issuing any directions relating to vaccines.

Elizabeth Ticehurst is a Principal Lawyer at Activate Workplace Law, a boutique firm specialising in whistleblowing and employment law. She helps organisations with all aspects of whistleblowing, from establishing a policy and program framework, to training senior managers and advising on individual reports.  Find out more or get in touch with Elizabeth at www.activatelaw.com.au