Further developments on whether your employer can force you to have the COVID-19 vaccine

On 6 August 2021 I posted an article dealing with this topic. Events have moved quickly and, by the time you read this article it may no longer be current.

Part of the controversy about this issue relates to how people look at this issue.

One approach is to focus on industries where mandatory quarantine has been common. These include influenza in the aged care industry and Q fever in abattoirs. In those industries unless you have had the appropriate injection you cannot work in the industry.

Others look at question of individual rights and responsibilities. What business is it of an employer to interfere with individual health decisions. If the Federal Government will not mandate injections, why can an employer?

There were also concerns raised by some employers about their obligation under Work Health and Safety Legislation and does this extend or mandate them to require employees to have the vaccination.

The Fair Work Ombudsman has recently published some guidelines dealing with this issue. Here is a link for your information. The guidelines were revised on 12 August 2021 and the guidelines point out that employers can only require employees to be vaccinated:

• where a specific law such as a public health order requires an employee to be vaccinated; or
• there is a requirement under an Enterprise Agreement/modern award; or
• it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated.

The guidelines provide detailed commentary on when a lawful direction may be given.

This issue is not yet resolved and should be assessed on a case-by-case basis. Some requests may be reasonable others may not and some crucial factors will include:

• the type of work done in that industry and risk factors
• the requirements of any Public Health Order; or
• any individual employee’s circumstances including religious and health concerns.

A direction which complies with the Public Health Order is much more likely to be regarded as reasonable and lawful.

The issue of whether an employer can force you to have a COVID-19 vaccine is likely to evolve substantially over the next few weeks. You should seek specific legal advice before acting and our employment team at Kells is more than happy to provide you with the correct and accurate advice.

Photo 213594764 / Covid Vaccine © Andrey Popov | Dreamstime.com