In limited circumstances, an employer can require an employee to get a COVID-19 vaccination: Here’s who is in the minority

Whether or not employers have the ability to lawfully require employees to receive a coronavirus vaccination has been a hotly debated topic over the past few months.

Employment law practitioners have generally viewed the debate through the lens of two questions.

1. Would requiring an employee to receive a coronavirus vaccination be considered a “lawful and reasonable direction”? 
2. Is having a coronavirus vaccination an inherent requirement of the job?

While some guidance can be drawn from the limited decisions of the Fair Work Commission regarding influenza vaccinations, the reality is, to date, there has been no conclusive statement or decision from the Fair Work Commission as to whether or not employers can require their employees to be vaccinated. 

As a means to combat this uncertainty, we have recently seen statements and website updates from the Attorney-General and Minister for Industrial Relations Christian Porter, the Fair Work Ombudsman and Safe Work Australia. 

The consensus of these regulators is that the overwhelming majority of employers won’t be able to require their employees to be vaccinated against coronavirus. This reflects the government’s broader policy that receiving a vaccination will be voluntary for citizens.

For employees, this also means that it is unlikely that they could refuse to attend their workplace where a co-worker was not vaccinated against coronavirus. 

In light of these statements, it would appear that it is only in very limited circumstances that an employer can require an employee to receive a coronavirus vaccination. 

Which employers and employees would be in the ‘minority’?  

The question for employers and employees then becomes, am I in the minority?

To answer this question, we turn back to the two questions posed at the start of this article.

To determine if a direction to receive a coronavirus vaccination would be lawful and reasonable, or an inherent requirement of a job, an examination needs to be conducted on a case-by-case basis. 

The regulators have stated that in their view, employers who could have a lawful and reasonable basis to direct employees to receive a coronavirus vaccination, are those who engage employees who:   

1. Come into contact with people who have an elevated level of risk of being infected with coronavirus, such as employees working in a hotel quarantine or border control; or 
2. Have close contact with people who are most vulnerable to the health impacts of coronavirus, such as employees working in health care or aged care.  

While these statements are not in and of themselves determinative as to what a court or the Fair Work Commission would decide in any given case, it would be very persuasive.

Of those two groups, it appears that it is employees who work in the health care and aged care sectors who will comprise the biggest portion of the ‘minority’ in the private sector. The health sector is considered to be Australia’s largest employer, providing jobs to about 12.7% of the population. 

These employers now face the difficult task of weighing up their responsibility to provide a safe workplace against the rights of their individual employees.

Disclaimer: this article should not be construed as legal advice and is not intended as such. If readers wish to obtain advice about anything contained in this article, they should speak with a lawyer and discuss their individual circumstances.