We are considering including a clause in new employment contracts to advise that having the COVID-19 vaccination is a condition of employment. Are we able to make vaccination a condition of employment (for future employees) of our business?
An employer may be able to require a prospective employee to be vaccinated against coronavirus. However, you should consider your obligations and responsibilities carefully under Commonwealth, state or territory discrimination laws, and the general protections provisions under the Fair Work Act 2009 (Cth).
If there is no law requiring COVID-19 vaccination for employees in a workplace, such as a public health order, you should be cautious about imposing blanket mandatory vaccination requirements for prospective employees, as this may amount to discrimination if an employee cannot be vaccinated due to a ‘protected attribute’. ‘Protected attributes’ include medical reasons for not being able to be vaccinated. Taking a personal ‘anti-vaccination’ stance is not, in and of itself, protected under discrimination laws.
Therefore, if a prospective employee cannot be vaccinated because of a ‘protected attribute’, you could face a discrimination complaint by enforcing a mandatory vaccination clause and refusing to hire someone on this basis. This doesn’t mean all vaccination policies will be unlawful. However, a policy is at a greater risk of being unlawful if it is applied the same way to everyone, irrespective of their personal circumstances.