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As we are all being urged by The NSW Premier Gladys Berejiklian to have the COVID-19 injection, how far can an employer go in urging or requiring its staff members to be vaccinated?

SPC has recently announced that it will implement a mandatory requirement that its employees have the COVID-19 vaccine.

Can an employer lawfully require that all of their employees have the COVID-19 injection? The short answer is it depends.

An employer can require an employee to follow a lawful direction and there are limits as to what can legitimately represent a lawful direction. Clearly, an employer cannot normally direct employees to undergo medical treatment.

It would be unwise for any employer to provide health advice to their employees. A sensible policy would suggest employees should speak to their doctor about the risks and benefits of the COVID-19 vaccine (and which injection is recommended) and currently, many companies are encouraging employees to have the injection by providing additional leave.

A blanket policy requiring all employees to have a COVID-19 vaccine in some industries would be unlikely to be a lawful direction. In others it may be. One of the key factors is likely to be the type of work that you do and another factor will be public health requirements and directions.

The Federal Government has announced that COVID-19 vaccines will be mandatory for all residential aged care workers from 17 September 2021. For the aged care industry, a direction that staff members have a COVID-19 injection may be a lawful direction.

Particular care should be taken with any employees who have any prior health conditions which would prohibit or make the injection not recommended.

In other industries a policy requiring COVID-19 vaccination may not be lawful and this is likely to be the subject of consideration by the Fair Work Commission in the future.

The Commission has looked at mandatory vaccination policies in respect of influenza. Here is a link to a decision of Deputy President Lake handed down in April 2021. In that decision, the Deputy President found that if a worker has an influenza injection, this was a reasonable direction and that her dismissal for failing to do so was not unfair. Each case will be determined on its own facts, but this case does provides a guide to the attitude to be adopted by the Commission.

This is a rapidly evolving area of the law and specific advice should be sought. This short article is only of a general nature.

 

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