State and Federal Governments are starting to mandate COVID- 19 vaccinations for some industries and some employers are requiring their staff and customers to be vaccinated.

So, can employers force their employees to be vaccinated? The Fair Work Ombudsman provides the following information:

Employers can only require their employees to be vaccinated where:

  • a specific law (such as a state or territory public health order) requires an employee to be vaccinated
  • the requirement is permitted by an enterprise agreement, other registered agreement or employment contract, or
  • it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis.

One or more of these circumstances can apply when an employer is requiring an employee to be vaccinated. For example, an employer could rely on a state public health order that requires their employee to be vaccinated to give the employee a lawful and reasonable direction not to work unless they are vaccinated.  

Lawful and reasonable directions to get vaccinated

Employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable is fact dependent and needs to be assessed on a case-by-case basis. Just because it may be lawful and reasonable to give a direction to one employee, that doesn’t mean it will automatically be lawful and reasonable to give the same direction to another employee or to all employees.

For a direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies (for example, an anti-discrimination law).

There are a range of factors that may be relevant when determining whether a direction to an employee is reasonable. Things to take into consideration include:

  • the nature of each workplace (for example, the extent to which employees need to work in public facing roles, whether social distancing is possible and whether the business is providing an essential service)
  • the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community
  • the terms of any public health orders in place where the workplace is located
  • the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant
  • work health and safety obligations
  • each employee’s circumstances, including their duties and the risks associated with their work
  • whether employees have a legitimate reason for not being vaccinated (for example, a medical reason)
  • vaccine availability.

How does a requirement to be vaccinated interact with anti-discrimination laws?

The Victorian Equal Opportunity & Human Rights Commission provides the following information on Mandatory COVID-19 vaccinations.

Is it discriminatory for my employer or a service provider to require me to get vaccinated?

The Equal Opportunity Act prohibits discrimination in certain areas of life, including employment and the provision of goods and services, based on protected attributes such as disability or religious belief or activity.

Vaccination status is not a protected attribute under the Equal Opportunity Act. This means that discrimination law doesn’t offer protection for everyone who chooses not to get vaccinated, only for people who have one of the other protected attributes in the Equal Opportunity Act.

If an employer makes vaccinations a mandatory condition of employment, or a service provider requires proof of vaccination to access a service, this could be discrimination if you cannot be vaccinated due to a disability or other attribute protected under the Equal Opportunity Act and they do not make an exception for you. The circumstances in which you may or may not have grounds for a discrimination claim are outlined more below.

Are anti-vaccination views a protected attribute under the Equal Opportunity Act?

There is no protected attribute in the Equal Opportunity Act that directly protects a person from discrimination on the basis of their vaccination status or their opposition to vaccines.

‘Political belief or activity’ is a protected attribute under the Equal Opportunity Act, which makes it unlawful to discriminate against someone because of that political belief or activity. Many in the community may consider their views on vaccinations to be political views, however it is unlikely that a claim of discrimination regarding mandatory vaccination on the basis of ‘political belief or activity’ would be successful under the Equal Opportunity Act.

Can an employer require employees to be vaccinated on health and safety grounds?

Under the Equal Opportunity Act, discrimination on the basis of disability or physical features is allowed if it is reasonably necessary to protect the health and safety of any person, or the public generally. If an employer wishes to make vaccination a mandatory requirement and this disadvantages some employees because of their protected attribute, the employer must prove how this health and safety exception applies. Health and safety grounds are likely to be relevant to other attributes as well because of the statutory authority defence and the requirements in work, health and safety law to provide a safe environment for staff as far as is reasonably practicable.

A range of things will likely be relevant to whether it is ‘reasonably necessary’ or ‘reasonably practicable’ to require vaccination, including:

  • the type of workplace and the people in the workplace, and whether there is a heightened risk they will suffer severe symptoms if they contract COVID-19 (for example, aged care settings where there are people over 60 or healthcare settings people where patients have respiratory conditions)
  • the physical space of the workplace and associated risk of transmission
  • whether alternative measures could have been put in place to protect employees and any members of the public who enter the workplace
  • the rate of community transmission at the time
  • the availability of the vaccine
  • advice from work health and safety bodies such as WorkSafe Victoria about vaccinations at the time – WorkSafe Victoria currently states that vaccinations are only one control measure available to employers and that other control measures should be considered to slow the spread of COVID-19. WorkSafe Victoria also notes that consultation may be required with individual staff members to consider whether vaccination is an appropriate control measure.

More information can be found at the following sites:

If you have any questions or require assistance, please contact the team at Workplace Resolutions on 03 5499 6131

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