Can an Employer Require an Employee to get the COVID-19 Vaccination?
As discussed during our recent Workplace Relations Video, whether a private employer can direct its employees to get the COVID-19 vaccination is a complex issue, with the primary issue being whether or not an employer’s direction for staff to receive the COVID-19 vaccination is lawful and reasonable.
It is commonly understood that employers can direct their staff to do certain things as part of their employment and employees have a legal obligation to comply with their employer’s directions if those directions are lawful and reasonable.
What Makes a Direction Lawful and Reasonable?
A number of matters are considered when determining whether or not a direction is lawful and reasonable, including (but not limited to):
- the express and implied terms of the employee’s contract of employment;
- the nature of the employment;
- established custom and practice in the workplace, trade or industry; and
- the employer’s workplace health and safety obligations;
- the employer’s duty of care;
- the terms of relevant instruments (eg a modern award and enterprise agreement), and any applicable legislation.
Some examples of directions that might be given by an employer to an employee include a direction to:
- participate in a workplace investigation;
- undertake a medical examination for the purpose of assessing fitness for work;
- comply with work health and safety laws;
- stay away from work or work from home to prevent the risk of exposure to, or spread of a contagious illness;
- report misconduct;
- prioritise projects in a particular way; and
- adhere to a dress code.
In the case of a direction for staff to receive the COVID-19 vaccination, whether such a direction is lawful and reasonable will vary depending on the circumstances of the employer, employee, the workplace and the industry.
As discussed in our video, what is reasonable in the context of an aged care facility, will differ significantly from a marketing office and understandably, one size does not fit all.
Various factors may impact the lawfulness and reasonableness of a direction for staff to receive the COVID-19 vaccination, including:
- whether the employer’s genuine and reasonable work health and safety obligations dictate a particular response;
- whether the employee can reasonably perform the inherent requirements of their role without being vaccinated;
- whether the employer’s common law duties of care owed not only to the employee but their clients dictate a particular response; and
- whether there are legislated or government-issued directions in place that require compliance.
Employers also need to be mindful of whether or not the direction constitutes discrimination or an infringement on a protected human right.
What if it is 'Reasonable' and the Employee Disobeys?
Breach of the implied duty of obedience is by its very nature a breach of the contract of employment, and in principle will attract the normal remedies for breach of contract. More often, employers will consider the following options in response to a failure to obey lawful and reasonable directions: respond to a breach by either:
- declining to take action;
- disciplining the employee.
Before taking disciplinary action against an employee for disobeying a direction, employers should always consider:
- Whether the direction lawful and reasonable;
- For directions contained in a workplace policy, was the employee required to read and acknowledge the policy? Was the employee trained in the policy and was it consistently enforced?
- Was the employee made aware of the consequences of failing to comply with the direction?
- Would the proposed disciplinary action be proportionate in the circumstances?
- Is the employee of long-standing with a good employment record?
- Can adjustments be made to the employee’s role or can they be suitably redeployed into a position where the vaccination is not required?
As you can see, the issue of whether or not an employer can direct staff to receive the COVID-19 vaccination is not straight forward and it is important employers navigate this issue with caution.
The issue has not yet been determined by the Fair Work Commission, and the matter of Glover v Ozcare [2021] FWC 231 may shed some much needed light on the issue if it proceeds to a formal decision as the employee, in this case, was dismissed after they refused to get the influenza vaccine on medical grounds.
Enterprise Legal's Workplace Relations team can assist with assessing whether or not such a direction is lawful and reasonable based on your workplace, employees and industry. Our team can also assist with issuing and managing the rollout of such a direction, assisting you every step of the way.
Reach out to us today: