As the COVID-19 vaccine rolls out across Australia, it has left many questioning whether employers can force their staff to get the vaccine. How does the vaccine work? Can employers make you take it? What are the consequences if we decline?
While the Australian Government strongly recommends Australians get the COVID-19 vaccination, it is not legally mandated to receive the COVID-19 vaccination. However, it could be within the rights of employers to compel their employees to be vaccinated against COVID-19.
COVID-19 vaccine roll-out is underway now
The race to source a safe and effective COVID-19 vaccine resulted with the two-dose Pfizer/BioNTech and Oxford/AstraZeneca being the first to gain approval to administer. At the moment, to be immunised against the disease you will need to have two injections, over two intervals of which the timing varies by brand.
The vaccine roll-out has now commenced and is being administered in five stages.
· Stage 1a - quarantine and border workers, frontline healthcare workers, aged care and disability staff and residents.
· Stage 1b - elderly adults over 70, other healthcare workers, Aboriginal and Torres Strait Islanders aged over 55, high risk workers such as police, fire, defence, emergency services and meat process workers, younger adults with underlying medical conditions or disabilities.
· Stage 2a - adults over 50, Aboriginal and Torres Strait Islanders aged over 18, critical high-risk workers.
· Stage 2b – the remainder of the adult population, anyone not vaccinated in previous stages
· Stage 3 – children under the age of 18 if recommended.
For all Australian residents the vaccine is free of charge. Public health records will be retained showing who has and hasn’t received the vaccine.
Can employees be forced to get the jab?
Employers have a duty of care under the model Work Health and Safety (WHS) laws to eliminate, or if that is not reasonably practicable, minimise the risk of exposure to COVID-19 in the workplace.
The Work Health and Safety Act 2011 (WHS) provides employers the right to take “all reasonable steps to ensure the health and safety of their employees, customers and other workplace participants”. Therefore, in certain industries, employers could make it a requirement to be vaccinated such as working with the sick, elderly vulnerable, working in the meat industry, working in border control or airports or working in an environment where social distancing is impossible. For this reason, choosing to decline the vaccine can have consequences depending on your line of work.
If an employer advises that their staff should be vaccinated, an employee’s inability to provide a reasonable explanation and evidence as to why they cannot receive the vaccine could see them in violation of certain laws.
Can employees who refuse vaccination be terminated?
At this stage, no court has definitively ruled on the matter so there aren’t any precedents set where employees have been terminated for refusing to undertake the vaccine - which places us in unfamiliar territory.
Fair Work commissioner Jennifer Hunt noted that an employee’s refusal of a “reasonable” direction by their employer to be vaccinated could result in the termination of employment, particularly if it were not objected on medical or religious grounds, and this evidence had not been provided.
An example of termination from work on the basis of refusal to vaccinate occurred in 2020 when Maria Glover, a carer in an aged care and disability facility, refused to be vaccinated against influenza. Her employer made it compulsory for their staff to receive the flu shot in April 2020 to avoid their vulnerable clients catching the flu and being more at risk of COVID-19. While Ms Glover claimed she refused the vaccinated on medical grounds, she was terminated due to her failure to provide evidence to her employer.
What ongoing responsibilities exist in the workplace?
At this stage it is too early to tell if the COVID-19 vaccines will stop everyone who has been vaccinated from being infected with the virus. This means that a vaccinated person may unknowingly carry and spread the virus to others around them, including customers, workers and others in their workplace. Therefore, even after the roll-out of the vaccine is completed, employers will still have health and safety responsibilities to keep the workplace safe from COVID-19.
Certain industries are still required to provide personal protective equipment (PPE) to staff, including safety helmets and vests, masks, aprons (in the hospitality industry), and gloves, and training on how and why it is important to use them.
Employers must continue to promote strong personal hygiene and social distancing at work to reduce the risk of illness. Some employers might also find it necessary to continue working from home options, even after the vaccine roll-out, to reduce the number of staff in small spaces and to encourage social distancing.
Taking extra steps to create a safe and clean working environment will not only keep your staff safe and your clients happy, but it will inherently increase productivity as fewer employees fall ill and need to take sick leave.
Keeping up to date in unpredictable times
While the worst of the pandemic seems to be behind us, employees and employers should stay up to date regarding new legal or workplace requirements given the unpredictable nature of the virus.
· The COVID-19 vaccine is designed to support the bodies natural immune response should an encounter with the virus occur.
· Phase 1a of the COVID-19 vaccine roll-out is currently underway Australia-wide, where frontline health workers, quarantine and border workers and aged care and disability staff and residents can be vaccinated.
· The Australian Government has not mandated that Australians get vaccinated, only strongly encouraged.
· Employers have a responsibility in work health and safety law to do what is reasonably practicable to create a safe workplace, and a power in common law to give employees “lawful and reasonable” directions. It has been argued that this power could extend to directing employees to be vaccinated.
· If it is deemed reasonable for an employer to ask their staff to receive the COVID-19 vaccination and the staff have refused without evidence of a medical or religious reason, this may be grounds for employment termination.
· Employers in high-risk industries, such as working with the sick, vulnerable, young, elderly, working in the meat industry, working in airports or border control and in sectors where social distancing is not possible, may strongly encourage their staff to get vaccinated.
This article is not intended to be a substitute for professional advice and should not be relied on as legal, health or personal advice. Always seek the guidance of your workplace legal team and health professionals with any questions you may have regarding workplace health and the COVID-19 vaccine.
If you need any assistance with hiring, contact a recruitment agency like Trojan Recruitment Group and receive advice from the experts in labour-hire, permanent and contract staff.