Home - Can you mandate COVID-19 vaccinations in your workforce?

UpdatesAug 20, 2021

Can you mandate COVID-19 vaccinations in your workforce?

With this week’s announcement by Qantas that vaccines would be mandatory for all its workers, businesses around the country are considering whether they can implement the same policy.

Importantly, the Qantas announcement, which followed on from the announcement by food producer SPC a few weeks earlier, came off the back of a survey of all its staff, which endorsed the approach.

Does this mean you can do the same?

In the absence of a government mandate in your industry, or the terms of an enterprise agreement or contract of employment requiring employees to have the COVID-19 vaccination, an employer can only direct an employee to be vaccinated if it is ‘lawful and reasonable’.

What is reasonable will be assessed on a case-by-case basis.

In general, the factors to consider are:

When will the direction be lawful and reasonable?

To assist employers to determine whether a direction to be vaccinated will be reasonable, the Fair Work Ombudsman recently updated its guidance materials. The Ombudsman has divided employees into four tiers. An employer’s direction to employees performing Tier 1 work is more likely to be reasonable.

The tiers are:

Whether a direction is lawful and reasonable will always be specific to the risks and circumstances at the time of the direction, and the circumstances for each employee. Find more information here.

What approach should your business take?

Any business can take the approach of encouraging, rather than directing, workers to get vaccinated. This approach is low risk in terms of claims that may be made against the business. But some businesses may consider that it is necessary to introduce mandatory vaccination for the protection of the health and safety of its staff, visitors, customers and suppliers.

If you are considering a mandatory vaccination policy, you should obtain advice on the introduction of the policy due to the legal risks, such as whether the policy will discriminate against individuals or breach their privacy. Further, if an employee refuses to comply with a direction and an employer decides to take disciplinary action, the employee may bring claims such as unfair dismissal, discrimination or general protection claims.

Will requiring vaccination help you meet your health and safety duties?

Employers have a duty to eliminate, or if that is not reasonably practicable, minimise the risk of exposure to COVID-19 in the workplace. For employers to satisfy their duty, they must implement the highest order control that is reasonably practicable. SafeWork Australia currently has guidance material that suggests that for most businesses it is unlikely that a requirement for workers to be vaccinated will be reasonably practicable. However, advice from regulators is continuously being updated.

Importantly, your business should undertake its own risk assessment to determine if a mandatory policy is needed. In your risk assessment, you should:

Requiring, or at least encouraging vaccination, may be one step you can take to respond to the risk of COVID-19. If vaccines are not reasonable for particular staff, ensure there are other control measures in place, such as social distancing, face masks, sanitisation. These measures will be ongoing features even if we do achieve high vaccination rates, because there will always be people who are unable or unwilling to be vaccinated – whether its staff, customer or visitors to the workplace.

Key action points

Before rushing into any decision on a policy for mandatory vaccination, be sure to take the following steps:

If you decide to make a policy, when drafting it, ensure the policy:

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