Plans for the roll out of a COVID-19 vaccine are well underway. Your employer may require that you get vaccinated against the Novel Coronavirus, but what if you don’t want to be vaccinated?
Assuming a vaccine for COVID-19 is safe and effective, employers may issue a mandate that all their employees get vaccinated. However, not all employees may be willing to get the jab. Data from researchers at the Australian National University (ANU) shows that when surveyed:
- 7% of Australians are likely not to get vaccinated; and
- 6% of Australians will definitely not get the COVID-19 vaccine.1
It is obvious why an employer may wish to require vaccinations – you only have to look at the business disruptions of the past year. There are, however, various reasons why an employee may not want to be vaccinated against COVID-19, including:
- fear of an adverse health reaction to the vaccination;
- lack of confidence in medical science; and
- objections on the grounds of religious or other personal freedoms.2
Lawful and reasonable directions of an employer
It is implied into an employment contract that employees are required to comply with the lawful and reasonable direction of their employer. An employer’s directive made by an employer to its employees to be vaccinated against COVID 19 will be lawful if it concerns the employee’s duties and involves no illegality. In most instances, a vaccination policy will meet this test. Whether such a direction or condition is reasonable will depend on specific circumstances. Reasonableness will be decided on a case–by–case basis and will vary depending on the industry in question.
Is forcing a COVID-19 vaccine on employees lawful?
Mandatory vaccinations are not unknown in Australian workplaces. In Victoria, the recent Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020 (Vic) makes it mandatory for frontline healthcare workers to have flu shots.3 Since mandatory flu vaccination policies appear in many workplaces, cases involving compulsory flu vaccinations may give us some indication as to how the Fair Work Commission (FWC) will treat cases involving mandatory COVID 19 vaccination policies.
Objection on moral and philosophical grounds
A childcare centre’s mandatory flu vaccination policy was considered in Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning.4 In that case, Ms Arnold objected to the vaccination on moral and philosophical grounds rather than medical grounds which the employer’s policy allowed. The employee’s claim was dismissed as out of time. However, the FWC commentary suggested that irrespective of moral and philosophical objections, in most circumstances, it was a balanced and fair direction or condition of employment for a childcare centre to require childcare employees to have the flu vaccination because it ensured that the childcare centre met their duty of care to their vulnerable clients, children who were not yet or perhaps unable to be vaccinated.
Another example of an employer mandated vaccination policy is the National Rugby League’s (NRL) vaccine policy. The NRL required players to be vaccinated for the flu prior to restarting the 2020 coronavirus-interrupted season. This ‘no jab, no play’ policy was strongly supported at the highest levels of government and declared to be “entirely reasonable” by no less person than the Prime Minister.5 However, after some high profile NRL players refused the vaccine, the league backtracked to allow players to still compete in the coronavirus-interrupted season under ‘compelling circumstances’, i.e. if a player refused a flu vaccination based on religious, medical or conscientious grounds and if they signed a release acknowledging they understood the heightened risk of not being vaccinated.6 Although this mandatory vaccination policy was not put to the test, it is clear that employees can influence employer vaccination policies – especially if you are a grand final star NRL player!
Objection on medical grounds
In a pending case involving an aged care worker Maria Corazon Glover, the FWC will be asked to consider whether the employee’s objections to a flu vaccination on medical grounds were reasonable and whether a flu vaccination is necessary if the employee takes other precautions, such as wearing PPE. It will be interesting to see what medical evidence will be accepted and whether alternatives to a vaccination will be considered.
Can I avoid getting vaccinated?
No Blanket Rule
Whether a workplace can successfully mandate a COVID 19 vaccination will ultimately depend on whether being vaccinated is essential to the performance of an employee’s core duties. The FWC will consider such matters as:
- The employee’s conditions of employment;
- The industry in which the employee works;
- The role of the employee in the workplace; and
- Whether the policy is discriminatory.
These considerations will be balanced against the employer’s obligations to customers, other staff members, suppliers and the general public. Workplaces that have a large number of customer-facing jobs or vulnerable clientele may have more success in imposing a vaccination policy, while workplaces that do not require workers to come into contact with other people may have less success.
How we can help you
If your employer makes a COVID-19 vaccination a condition of employment for effective risk control, then legal advice may help to determine the legitimacy and any risks associated with such a policy. If you are worried about being forced to get a COVID-19 vaccine we can help you:
- To decide the course of action that best suits you;
- Advise you on your workplace rights so that you can make an informed decision; and
- Assist you in enforcing your workplace rights.
If you are an employer wanting to implement a vaccination policy in your workplace, we can help you to develop appropriate procedures.
If you would like to discuss your options, call us now on (02) 9199 8597.
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