Employers can only direct employees to be vaccinated against COVID-19:
- if a specific law requires the employees to be vaccinated;
- if the written contracts of employment for each employee require the relevant employees to be vaccinated or permit the employer to direct/require the employees to be vaccinated
- if the requirement for employees to be vaccinated (or the ability of the employer to direct employees to be vaccinated) is permitted by an enterprise agreement or other registered agreement; or
- if the employer’s direction that employees be vaccinated is lawful and reasonable (as it is an implied term in all employment contracts that employees must follow the lawful and reasonable directions of their employer).
DIRECTION IS “LAWFUL AND REASONABLE”
As set out above, an employer can direct its employees to be vaccinated against COVID-19 if the direction is “lawful and reasonable.” Whether an employer’s direction is lawful and reasonable depends on the facts and circumstance of the particular case.
Whether a direction is “reasonable” is determined on a case by case basis as it is dependent on the relevant factors. The relevant factors include (but are not limited to):
- the employer’s work, health and safety obligations;
- the risk of the employees and customers being exposed to COVID-19 (the extent of community transmission in the area in which the direction is given including the risk of transmission of the Delta variant amongst employees; customers and other members of the community);
- the nature of the workplace (for example, whether social distancing is possible and whether the employees work in roles which deal in person with members of the public);
- any laws requiring the relevant employees to be vaccinated;
- the effectiveness of vaccines in reducing the risk of transmission or serious illness;
- the circumstances of each employee in the workplace including (but not limited to) their vulnerability to serious illness, their duties and risks associated with their work and whether they work remotely in isolation or in the workplace in close proximity to others;
- if employees have a legitimate reason (exemption) from being vaccinated (eg. particular medical grounds which a doctor certifies as justifying the employee being exempt from vaccination);
- the availability of vaccines; and
- the ability of employees to be vaccinated.
MANDATORY COVID-19 VACCINATION POLICIES
In the recent case of CFMMEU & Anor v Mt Arthur Coal [2021] FWCFB the Full Bench of the Fair Work Commission held the employer’s direction that employees be vaccinated was not lawful and reasonable because the employer failed to comply with its consultation obligations under the Work Health and Safety Act 2011 (Cth) prior to the employer deciding to introduce the policy.
Employers – be aware of your obligations. We can assist you in determining whether you can lawfully direct your employees to be vaccinated, preparing a mandatory vaccination policy and ensuring you comply with your obligations to consult employees.
This article is prepared to only provide general information about the topic. It is not intended to be used as advice in any way.