Can employers require employees to get a Covid-19 jab?
This topical question has recently had one clear answer by the Fair Work Commission – yes employers can require employees to get vaccinated – but only in the right circumstances.
The answer was previously thought to be no, after the employment regulator the Fair Work Ombudsman issued guidance, which is not law, discouraging employers from mandatory vaccination.
To recap the law, an employer can direct an employee to do something if it is a lawful and reasonable request.
In terms of health care and vaccinations, it’s worth consider the facts of the case. A childcare centre directed its child care workers to get the flu vaccination. A senior employee refused to get a flu jab on health grounds claiming a sensitive immune system and an allergic reaction some 11 years prior. She was later fired. The employee claimed their dismissal was unfair, but this was rejected by the Fair Work Commission.
The Fair Work Commission found that the direction to get the flu jab was reasonable directive from the employer, because of the risk to children of contracting the flu, the government recommendation to get the flu jab and medical evidence showed vaccination reduced the risk of flu. It considered that the workplace policy to get a vaccination was a fair one, because employees could be exempted for valid medical reasons. It suggested that the alternative, the employee wearing Personal protective equipment, such as a mask, and isolating would be impractical to the job.
With this guidance, my key advice to businesses is:
There is no law that mandates an employee get a vaccination or medication, and it is not safe to assume you can require mandatory vaccination and give a staff member who refuses the sack.
If you work in a high risk or with vulnerable people – it is possible to mandate vaccination provided it is done right and it complies with you to ensure a safe workplace for all employees.
What will be reasonable will depend on each employer and their circumstances of their work.
It goes without saying that opinions for and against vaccination are controversial. For advice on this complex area, contact our business lawyers Lachlan Edwards on 03 5445 1031 and Siobhan Liston on 03 5445 1067