Can an employer mandate an employee to take the COVID-19 vaccine?

On Monday 22 February 2021, the national rollout of the COVID-19 vaccine commenced. While health workers and the elderly are the first categories set to be vaccinated, by the end of 2021, the federal government aims to have as many Australians inoculated as possible. 

Against this backdrop, a topical issue in employment law relates to whether an employer can mandate an employee to accept the COVID-19 vaccine. There are three ongoing cases before the Fair Work Commission related to the issue but we expect more important and precedential decisions soon. However, at present there is no case law that has dealt with this issue.

Overview of OSH obligations

Under section 19 of the Occupational Safety and Health Act 1984, as far as is reasonably practicable, an employer is obliged to provide and maintain a safe working environment in which employees are not exposed to hazards and, where it’s not practicable to avoid the hazard, to provide adequate PPE at no cost to the employee. 

In the context of the COVID-19 pandemic, there are a variety of basic measures which employers can take to fulfil their OSH obligations. Such measures include: 

  • requiring employees to practise good hygiene;
  • requiring employees to stay home when sick; 
  • cleaning the workplace regularly; 
  • considering working from home arrangements (if possible); and 
  • providing employees with up-to-date health advice.

When an employer can mandate the COVID-19 vaccine

There are currently no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against COVID-19. As a general rule, only health authorities should have the power to direct any employer to mandate vaccination and no-one else should seek to regulate in place of health authorities.

Click here to view a general guideline from the Fair Work Ombudsman.

There are limited circumstances where an employer may require their employees to be vaccinated. It is highly fact dependent, taking account the particular workplace and each employee’s individual circumstances. There are generally two cases whereby an employer could mandate an employee to take the COVID-19 vaccine. These include:

  1. Where vaccination is an inherent requirement of the position. A typical example of this would be where a specific law (such as a state public health law) requires it. If a carer is employed at an aged care facility, and the Health Department issued a direction for all such carers to be vaccinated to protect elderly residents, it becomes an inherent requirement of their position.
  2. Where vaccination is a reasonable as well as lawful direction, and the employee does not have a valid objection. At present, given there is no conclusive evidence on the vaccines preventing the spread of COVID-19 and as such, this would likely not be a reasonable and lawful direction.   

Further to the above, employers should comply with any future public health orders made by the state government as they apply to you and your workplace. 

Note that some employees may have a legitimate objection to the taking of the vaccine such as a bona fide medical reason. Before an employer considers mandating vaccination or taking disciplinary action against an employee who refuses, legal advice should be obtained to ensure the company is not at risk of breaching general protection provisions contained in the Fair Work Act or anti-discrimination provisions found in federal and state legislation.

There are also various other issues to consider in connection with COVID-19 vaccinations such as workers compensation claims, insurance, redundancy or subcontractor terms and we recommend employers should seek legal advice before making decisions. 

We expect some clarification around the legal issues pertaining to the COVID vaccine in the next few months and will keep NECA members updated when that happens.

Disclaimer: This summary is a guide only and is not legal advice. For more information on OSH obligations, call NECA Legal (WA) Pty Ltd on (08) 6241 6129 or email necalegalwa@ecawa.org.au.