Mandatory COVID Vaccinations – Employers Can Try But No Supply

COVID-19

At the start of the vaccination rollout, resentment and hostility abounded in the public comment pages of news sources at the mention of the possibility of employers making a covid vaccination mandatory for employees.  There was some highly publicised debate about the legality of such a move particularly as it remains untested in a court of law. No consensus was reached.

At present, all Covid vaccinations are voluntary, though the Federal Government does have the power to make them mandatory for all persons, employed or not.

Now and into the near future, it would be a foolhardy employer who tried to impose a mandatory vaccination policy on employees as the current limited supply of vaccinations, in conjunction with the Federal Government’s phased rollout plan, quite simply prevents employees from complying with such a requirement.

But, the situation is likely to change, if and when vaccination availability stabilises. At this time, it is probable some employers may take the step of determining employment and employability on the basis of a covid vaccination.  The legal basis for taking such action could be made under workplace health and safety laws where both an employer and employee have a duty to ensure they take all reasonable steps to ensure a safe work environment.

It is more than likely that the prevention of transmission of a highly communicable disease to work colleagues or other persons that employees interact with, by way of vaccination, could be considered a reasonable step in providing a safe working environment. It is also more than likely that preventing the contraction of the disease would be considered a reasonable step by an employee to take care of their own health and safety.  It may also give employers and employees some basis of protection from any potential negligence claims.

For existing employees, employers could incorporate this requirement by amending their policies or for new employees by inserting it as a requirement in a contract of employment.   Of course, there would be no issue for any person who has had the vaccination.

An issue would only arise if an employee or potential employee decided that they did not want to have the vaccination or could not for legitimate reasons have the vaccination.  There are already certain industries or sectors that have mandatory vaccinations requirements for employment with exemptions in certain circumstances.  It is thought that if a Covid vaccination is mandated for a particular industry or sector, then the existing types of exemptions would be applied, the most common being on certified medical grounds, but only time will tell if this occurs.

Employees who refuse vaccination and are penalised by an employer may have recourse against the employer if the directive to get vaccinated does not fall within a lawful or reasonable directive as well as provision within  the various state anti-discrimination acts and the federal human rights act which in summary provide that a person shall not be subjected to medical treatment without their free consent.  There may also be some recourse on the grounds of freedom of thought, conscience, religion and belief.

There is no one size fits all legal perspective as to the question of mandatory covid vaccination in employment.  It will always come down to the unique facts and circumstances of a particular situation in conjunction with a thorough assessment of the rights and obligations of both the employer and employee.

Hopefully this situation doesn’t arise for you, but we are always here to assist if the need arises.
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