Mandatory COVID-19 Vaccinations in the Workplace – Your Questions Answered
The law on whether COVID-19 vaccinations are compulsory in workplaces, remains undecided. As it currently stands, vaccinations are only mandated by legislation in Victoria for aged care workers. If you are in any other sector, you must understand your current obligations and its intersection with anti-discrimination law.
Can I require my employees to be vaccinated?
The short answer is that most employers cannot require their employees to be vaccinated. The rationale behind this is that the vaccination is currently a voluntary vaccination – a person can choose whether they want to be vaccinated.
An employer can only require an employee to be vaccinated where:
- There is a specific law requiring it: for example, in Victoria residential aged care workers are required to have the COVID-19 vaccine, with the first dose to be administered by mid-September 2021;
- There is an enterprise agreement or an employment agreement that requires a vaccination. You may need legal advice to ensure that the agreement does not breach state and Commonwealth anti-discrimination laws;
- Where points 1 and 2 do not apply, an employer can only require a vaccination where that direction constitutes a lawful and reasonable direction.
Lawful and Reasonable Direction
Employees are required to follow lawful and reasonable directions given by their employer. An employee who fails to comply could be subject to disciplinary action, including dismissal.
A direction will be lawful where it falls within the scope of the contract of service (i.e. the scope of employment) and involves no illegality. Whether a direction is reasonable will depend on the terms of the employment, nature of employment, industry practices and the law.
There is no case which has dealt with whether requiring an employee to get a COVID-19 vaccination is a lawful and reasonable direction. However, our opinion is that it would not be a lawful and reasonable direction for the majority of Australians. It is likely to be less clear for those with a higher exposure to COVID-19, such as front-line workers. These industries should seek clarification and advice from a lawyer and Safe Work Australia.
Can I Preference a Vaccinated Candidate or Employee over Others?
In some circumstances you can. The Equal Opportunity Act 2010 (Vic) is the primary legislation governing discrimination in the workplace. It prohibits discrimination based on a number of protected attributes – vaccination status is not one.
However, if an employee’s decision not to get vaccinated relates to a protected attribute (such as disability or pregnancy), an employer could be engaging in discrimination by requiring them to be vaccinated, refusing to offer employment or detrimentally affecting their employment.
What if the Law Changes?
For the law to change or be challenged, a case would have to be decided in court or parliament would have to pass new legislation. If this does happen, we anticipate that the law may include:
- A direction from an employer for employees to be vaccinated will be a lawful and reasonable direction in high exposure industries;
- Leave required for the vaccination will be covered by sick leave or a government subsidy;
- Employers being indemnified for any side effects suffered as a result of the vaccination.
Given the law is undecided and untested in this area, we stress that the views contained in this article are our opinion and not legal advice. We urge you to seek legal advice on this matter and keep up to date with any changes in the law.