Can my Employer Make the COVID-19 Vaccine Mandatory?
Last week, the Australian COVID-19 vaccine program begun, and it is being rolled out in three phases:
Phase 1a will require up to 1.4 million doses for:
- border workers;
- hotel quarantine staff;
- aged care & disability staff; and
- front-line health workers.
Phase 1b will require up 14.8 million doses for:
- elderly adults aged 70 and over;
- adults with a specified medical conditions and / or disability;
- Aboriginal and Torres Strait Islander people aged 55 and over;
- critical and high-risk works including defence, police, fire, emergency services and meat processing.
Phase 2a will require up to 15.8 million doses for:
- adults aged 50 and over;
- other critical and high-risk workers; and
- Aboriginal and Torres Strait Islander people 18-54.
Phase 2b will require up to 16 million doses for
- the balance of the adult population; and
- any required catch up vaccines for unvaccinated Australians.
Phase 3 will require up to 13.6 million doses for:
- children aged 16 and below.
THE COVID-19 VACCINE IS VOLUNTARY AND FREE
At the time of writing, vaccines are voluntary and free with the federal and state government opting not to mandate vaccines currently. If you wish to receive your covid-19 vaccine, you will have to wait for your required phase to begin its roll out with each person receiving two doses, the second within the following weeks after the first. For more information on your phase, this is available at the Australian Government Department of Health Website.
Alternatively, if you do not wish to take the covid-19 vaccine for whatever reason there are currently mandatory requirements to do so. However, as the vaccine becomes more readily available, it is possible your workplace may require you to take the vaccine if you wish to continue your ongoing employment.
CAN MY EMPLOYER MAKE THE COVID-19 VACCINE MANDATORY?
At the present time, there is no case law or other authoritative guidance on whether vaccinations by employers can be mandated and it will be assessed on a case by case basis.
One case of note was Arnold v Goodstart Early Learning Limited in April 2020 where the Fair Work Commission heard a matter involving an employee who refused to consent to a work mandated flu vaccination. While the matter was dismissed due to the employee missing the limitation period for an unfair dismissal claim, the deputy president at the time said that the vaccine was:
“necessary to ensure that it [the respondent] 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.”
The deputy president also noted that it was:
“… at least equally arguable that the respondent’s (the employer) policy requiring mandatory vaccination is lawful and reasonable in the context of its 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.”
It is therefore likely that, depending on the particular job and industry, employers may be entitled at law to make the COVID-19 mandatory for certain employees.
LAWFUL AND REASONABLE
Whether an employer can mandate the covid-19 vaccine will depend on what is reasonable in the circumstances. On 26 January, the Australian Government Fair Work Ombudsman published its guidance on COVID-19 vaccinations & the workplace, where they (among other things) stated that:
“There are currently no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against coronavirus. The Australian Government’s policy is that receiving a vaccination is voluntary, although it aims to have as many Australians vaccinated as possible.” There are, however, limited circumstances where an employer may require their employees to be vaccinated.”
For example, COVID-19 and the global pandemic does not necessarily make a vaccine mandate reasonable. Rather, the Fair Work Ombudsman stated that the vaccine mandate would have to be “… a reasonably practicable measure to eliminate of minimise risks to work health and safety under work health and safety laws”.
In assessing whether an employee mandated covid-19 vaccine is reasonable, it is likely a court would consider (among other things) the following factors:
- nature of employment;
- work health and safety;
- necessity of the vaccine;
- relevant laws or regulations;
- modern award and enterprise agreements; and
- the employee’s disability status; religious beliefs, and philosophical beliefs.
At this time, the Fair Work Ombudsman has noted that it would likely be reasonable for the following employers to mandate the vaccine:
- hotel quarantine or border control employers, where employees are at a high-risk of COVID-19 exposure; and
- health care or aged care employers, where employees interact with people most vulnerable to COVID-19.
WHAT IF A DISPUTE ARISES?
If your employer mandates the COVID-19 vaccination and you require legal advice regarding your options, you can seek advice from some of the Best Ligation Lawyers Gold Coast, here at Ramsden Lawyers.
If you want the COVID-19 vaccine, you should visit the Australian Government Department of Health Website to keep up to date on your phase role out. Otherwise, if your employer is or has mandated the COVID-19 vaccine as a requirement for your employment, you should seek legal advice for your specific circumstances, and our Gold Coast Lawyers are here to assist.
OUR PROFESSIONAL SERVICES
If you are looking to seek legal advice, Ramsden Lawyers are able to assist you. We are happy to arrange an initial consultation to assist you in navigating the procedures necessary for your circumstances.
The content of this article is intended to provide a general guide to the subject matter and must not be relied on as legal or health advice. Specific advice should be sought about your circumstances.
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 Arnold v Goodstart Early Learning Limited