Can employers make COVID-19 vaccination mandatory?

MELBOURNE: Protests have occurred recently with workers in the construction sector opposed to mandatory vaccinations and other restrictions. Health authorities say getting vaccinated is our path out of the pandemic, but is forcing people the best way to do it? Can employers make it mandatory for their staff to get immunised?

It’s a good question, and put simply, only if it is “lawful and reasonable”. Employers can mandate COVID-19 vaccines for their staff where required under a public health order, or where there are other compelling reasons to do so, such as particular work health and safety risks. 

SPC, a Victoria-based canned food processor, recently announced that they will mandate COVID-19 vaccinations for their employees as well as Virgin Australia, which announced it is introducing mandatory vaccinations for all of its 6,000 employees. 

Mandatory vaccination policies are likely to be reasonable in workplaces where employees may have direct contact with people potentially infected with COVID-19 (such as frontline healthcare, quarantine and airline workers), or where employees are working with people who are particularly vulnerable (such as aged care and disability workers). The Fair Work Ombudsman (FWO) has updated its guidelines for employers and employees in an effort to make the legally “grey” area a little clearer and has offered additional guidance here.

A recent ABC report outlined the “four tiers” of work to help assess where it might be “lawful and reasonable” to mandate vaccination.

  1. Tier 1 work – employees interact with high-risk people (border control, hotel quarantine)
  2. Tier 2 work – employees interact with vulnerable people (e.g. health care or aged care workers)
  3. Tier 3 work – employees with public interaction (e.g. retail workers at essential stores)
  4. Tier 4 work – employees with minimal face-to-face interaction

Tiers 1 and 2 are likely to be covered by public health orders or lawful workplace contracts. 

The FWO says it’s “unlikely to be reasonable” to make Tier 4 workers get vaccinated. 

So, what does this mean? 

Employers are required to work with their staff before changing policies around vaccinations.

The updated advice outlines that employers must:

  • Consult with employees and health and safety representatives
  • Give employees and health and safety representatives “reasonable opportunities to express their views”
  • Take into consideration anti-discrimination laws that may apply.

Still not clear on your rights?
Clearpoint Legal provide commercial legal advice to Australian businesses. For a 15-minute discovery call click here.

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