No sweeping power to require COVID 19 vaccination.
IR Minister Christian Porter has stated that the ‘overwhelming majority’ of employers should assume they have no power to force employees to vaccinate against COVID-19 and the Australian Federal Government supports voluntary vaccination. The advice from Chief Health Officers and Chief Medical Officers is that there is no requirement for mandatory vaccination at this point. (Workforce 19 Feb 2021).

Whilst the Australian government is seeking a 95 percent take up rate in a proposed national vaccination program, employers will likely want to protect clients and co-workers as well as avoid legal liabilities of potential workplace COVID transmissions.

Can an employer mandate COVID vaccinations?
In two recent unfair dismissal cases the Fair Work Commission has considered applications involving employers requiring influenza vaccination with employees losing their jobs for refusing.

An employer’s duty of care
In the first case a childcare worker refused to be vaccinated when Goodstart Early Learning made flu vaccinations a condition of employment with exceptions allowed on medical grounds. The applicant objected but provided no medical reason. The commission dismissed the application on the basis the vaccination policy requiring mandatory vaccination was lawful and reasonable to satisfy the duty of care to children whilst the applicant’s refusal was unreasonable.

An employer can make a vaccination a condition of work – but with significant caveats. It requires ‘balancing’ the employer’s duty of care to others against the employee’s reason for refusal and the type of work being performed.

A second case involves an aged care assistant and the aged care provider Ozcare who made flu vaccination mandatory for all employees in residential aged care facilities or with direct client care. The applicant provided no supporting evidence for medical exemption. A final ruling in this matter is pending.

What this means for employers
An employer can make a vaccination an inherent requirement of employment and dismiss a worker for refusing – even if they have a legitimate reason. However, it will depend on the individual role and the exposure risks – if that risk can be minimised through social distancing and other measures such as working from home, the commission may rule a dismissal for refusing vaccination to be unfair. Particularly if they have a good reason that is a medical condition. It will depend on the balance of the employer’s duty of care against the employee’s claim.

In February 2021, there is no clear position on whether an employer can mandate vaccinations for COVID-19. It remains a matter for further consideration by medical experts whether workplace vaccinations will become mandatory or not.

The legality of workplace vaccination policies in terms of making policy ‘black and white’ will need to come from state and territory governments using their regulatory powers under their work health and safety acts. (Cecelia Anthony Das and Kenneth Yin, Edith Cowan University).

Jobs Australia will continue to monitor further developments in this critical area of employment and provide updates to Members about vaccinations as new information becomes available.

This information and contents of this publication, current as at the date of publication, is general in nature to offer assistance to Jobs Australia Members and is for reference purposes only. It does not constitute legal or financial advice. If you are concerned about any topic covered, we recommend that you seek your own specific legal and financial advice before taking any action.

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