By Jack de Flamingh and Kate Curtain -
Snapshot
- At this stage of the COVID-19 vaccine roll-out, most employers will not be able to require employees to receive the vaccine, but this position could change as the roll-out progresses.
- Regardless of whether vaccinations are required, employers will still need to continue with current control measures for managing the health and safety risks associated with COVID-19.
As the COVID-19 vaccines are rolled out, attention has turned to whether employers can require employees to be vaccinated. The issues are evolving, however without a public health order, or an express obligation under existing terms of employment supporting a requirement for vaccination, most employers will not be in a position to direct employees to receive the vaccine.
Is it lawful and reasonable to mandate employee vaccinations?
The lawfulness and reasonableness of a direction must be assessed by reference to the individual employment relationship. The direction must fall within the scope of employment having regard to the nature of employment and common practices that exist.
Under work health and safety laws, employers have a duty of care to ensure the health and safety of employees and others, so far as is reasonably practicable. Throughout the pandemic, employers have become accustomed to managing the health and safety risks associated with COVID-19 through the implementation of various control measures. Whilst none of these control measures would be as invasive as a vaccine, they would also not be as effective (and presumably, long lasting) at protecting the health of the individual vaccinated.
From a health and safety perspective, there can be an obvious benefit if an employee receives the vaccine, as it will help protect against the virus. However, an employer’s duty of care to ensure health and safety ‘so far as is reasonably practicable’ necessitates consideration of the various ways in which a risk can be managed, and the availability and suitability of such control measures. At most workplaces around Australia, employers have already been adopting many of the known and recommended control measures for managing the health and safety risks associated with COVID-19. The need to introduce a direction for vaccination in addition to these control measures may not be necessary, particularly as it has not been confirmed that vaccines can stop transmission in all cases.
