With COVID vaccinations being rolled out across the country, this raises an interesting question on if an employer can require an employee to have a vaccination as a condition of employment.
The Australian Government has announced that the coronavirus vaccine will not be made mandatory in Australia which raises a number of questions for employers:
At this stage it would seem the answers will depend on the circumstances surrounding the employment and context of the employment of each employee. Currently there is no regulatory or legislative requirement for employees to be vaccinated to participate in employment.
Employers in the office environment are likely to face greater difficulty in demonstrating the reasonableness of a direction to vaccinate, compared to a high-risk workplace such as a hospital, as there is a much lower risk of an outbreak in an office.
In low risk work environment an employer can put in place a number of accommodating measures to reduce the spread of coronavirus such as social distancing and working from home arrangements.
A case which can provide some guidance on this topic is an unfair dismissal case in which an employee refused to have a flu vaccination. The case of Nicole Arnold v Goodstart Early Learning ruled that an employee was not unfairly dismissed for refusing to have a flu vaccination. A condition of employment was to have a flu vaccination to be able to work in the childcare centre. Ms Arnold refused to have the vaccination and was subsequently dismissed. This dismissal was upheld by the Fair Work Commission. The Commission dismissed Ms Arnold’s application on the basis Goodstart’s vaccination policy was reasonable to satisfy its duty of care.
The guidance provided from the case above suggests that employers may be able to make having a vaccination an inherent requirement of employment, in certain circumstances.
When considering whether to terminate an employee for failing to vaccinate against the coronavirus, or otherwise, employers must consider whether being vaccinated is an inherent part of their role and whether the direction in all the circumstances is reasonable and lawful (there can be health circumstances where directing an employee to have a vaccination is inappropriate/discriminatory).
To be lawful a direction needs to be consistent with the employee’s contract of employment. In particular, the direction must be within the scope of the duties for which the employee was employed.
A refusal to follow a lawful and reasonable direction can constitute a valid reason for termination, however if the reason is found to not be valid, this can leave employers open to the risk of an unfair dismissal claim being filed.
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