What a topical and often controversial discussion point this can be. We have seen various businesses in the local Townsville community take different approaches, including introducing workplace policies to make vaccination for employees compulsory, recommending that employee's be vaccinated, and even seen a business offer a Christmas bonus to employees who do not get vaccinated.
The Australian Government released a Media Statement on 6 August 2021 stating that vaccinations against COVID-19 should remain voluntary in the workplace. However, in the same Media Statement the Australian Government also said that decisions to require COVID-19 vaccinations mandatory is a matter for individual businesses to consider, taking into account their particular circumstances and obligations under workplace health and safety, anti-discrimination and privacy laws.
So what does this mean for employers who may wish to make it compulsory for employees to be vaccinated?
There are no laws prohibiting an employer from introducing a workplace policy or employment term making it mandatory for employees to be vaccinated against COVID-19.
All employees must also follow lawful and reasonable directions by their employer. If an employee does not follow a lawful and reasonable direction by their employer then that employee can be liable for disciplinary action, including termination of their employment.
Whether a direction by an employer for an employee to be vaccinated against COVID-19 is reasonable will depend on the circumstances, including any public health orders relevant to the business, any workplace policy or term of employment, the risk for the business having regard to its industry, and the vulnerability of the business client-base.
All employers have an obligation under workplace health and safety laws to ensure that as far as is reasonable practicable their employees and the public at large are not put at risk.
However, importantly, if an employer wishes to introduce a mandatory policy in the workplace or term of employment requiring employees to be vaccinated against COVID-19, they should carefully consider their business situation and operational aspects of the business. The wording for such a policy or term of employment should also be carefully considered and appropriate legal advice obtained. The last thing a business needs is to introduce a policy of this sort and then have unintended detrimental consequences.
This could include a possible claim under Anti-Discrimination laws, which prohibits discrimination against employees based on protected attributes (being an employee with a disability or impairment). In saying that, it is still lawful to introduce such a policy or term of employment even if it results in indirect discrimination if it is reasonably necessary to protect public health.
There is no doubt that employer's in certain industries could introduce a policy to make it compulsory for their employees to obtain a vaccination against COVID-19. This may include employer's in child-care, aged care, medical, disability support etc.
We have also seen a Victorian food processor announce the mandatory vaccination requirement for all of their employees. Qantas has also indicated that it will soon be mandatory for all Qantas employees to be vaccinated. From 17 September 2021, the COVID-19 vaccination will also be mandatory for all residential aged care workers.
If you wish to discuss your business operations and the possible introduction of a policy in the workplace or term of employment rendering it mandatory for employees to be vaccinated against COVID-19, please contact us and we would be happy to discuss your matter further.