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To Jab or not to Jab - that is the Question (COVID vaccines and the workplace)

Posted on March 05, 2021

The Australian government aims to have as many Australians vaccinated against COVID-19 as possible. However, it has so far refused to make the vaccination mandatory.

Under Work Health and Safety laws, employers have a duty to minimize – so far as reasonably practicable – the risk of exposure to COVID-19 in the workplace.

When it comes to the matter of requiring mandatory vaccinations for employees, the COVID-19 pandemic does not automatically provide support for this as a reasonable measure.

Because there are currently no laws or public health orders as to mandatory vaccinations, employers must in general assume they will be unable to require mandatory vaccination of their employees.

Additionally, factors such as ‘low risk’ workplaces or locations, and the current limited supply of vaccines, contribute to preventing such a requirement from being ‘reasonably practicable’.

Instead, reasonably practicable measures that both employers (and employees) can take include: adhering to public health orders made by the state government, physical distancing, regular cleaning and sanitization, and ensuring that employees do not attend work whilst sick.

Limited circumstances where a requirement to be vaccinated is a lawful and reasonable direction

There may however be circumstances where an employer may require employees to be vaccinated. In such circumstances where the direction to be vaccinated is lawful and reasonable, a refusal by an employee to be vaccinated may provide grounds to discipline the employee. The circumstances where this may occur will be dependent on the individual facts, for example, where employees interact with people with an elevated risk of COVID-19, or people who are most vulnerable to the health impacts of a potential infection (such as employees working in health care or aged care).

In Arnold v Goodstart Early Learning Limited [2020] FWC 6083, the employer who operated a childcare centre mandated its employees to receive Flu vaccinations. An employee who refused was terminated. Although the childcare centre permitted exemptions on medical grounds, the employee did not assert that her refusal was on medical grounds. The employee was too late in making her unfair dismissal application so there was no judgment on the merits of the termination. However, there was some helpful commentary.

The Fair Work Commission noted that it was arguable:

that [the employer’s] policy requiring mandatory vaccination is lawful and reasonable in the context of [the employer’s] operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason”

and

“ the [employer’s] policy is necessary to ensure that it meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/or medical conditions. It is also equally arguable that the[employee] has unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position, which involves the provision of care to young children and infants.

Can an employee refuse to attend the workplace because co- workers have not been vaccinated?

At present, because there are no public health orders regarding mandatory vaccinations, it is unlikely an employee could refuse to attend their workplace based on a co-worker being un-vaccinated.

Employers should stay up to date with public health directives, and seek legal advice on any issues they may face regarding employees and matters of vaccinations.

If you require assistance please contact our workplace relations team on 08 8223 7600.

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