Australia: Can employers make the COVID-19 vaccination mandatory?
An overview of Fair Work Ombudsman and Safe Work Australia latest guidance and what businesses considering making the vaccination mandatory need to take into account
In our recent article, we outlined a number of considerations for employers in determining their approach to vaccination in the workplace. Since then, Prime Minister Scott Morrison and Industrial Relations Minister Christian Porter have both publicly stated that COVID-19 vaccinations will not be mandated at a federal level.
In this article, we explore recent government updates regarding COVID-19 vaccinations.
Fair Work Ombudsman guidance on COVID-19 vaccinations and the workplace
On 19 February 2021, the Fair Work Ombudsman (FWO) published guidance stating that "the overwhelming majority of employers should assume that they won’t be able to require their employees to be vaccinated against coronavirus." Instead, the FWO indicated its view that there would only be "limited circumstances" in which an employer may require their employees to be vaccinated, but that this would be "highly fact dependent".
The FWO recommends employers consider:
whether a specific law (such as a state or territory public health law) requires an employee to be vaccinated (noting that there are currently no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against coronavirus);
whether an enterprise agreement, other registered agreement or employment contract includes a provision about requiring vaccinations;
if no law, agreement or employment contract applies that requires vaccination, whether it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated (which is assessed on a case-by-case basis).
Additional considerations include whether employees have a legitimate reason for not being vaccinated (for example, a medical contra-indication), and how protections for employees under anti-discrimination laws may apply.
Safe Work Australia publishes updated coronavirus vaccination guidance
Also on 19 February, Safe Work Australia published updated guidance advising that employers have a duty under work health and safety laws to eliminate or, if not possible, minimise, the risk of exposure to COVID-19 in the workplace but that "it is unlikely that a requirement to be vaccinated will be reasonably practicable".
What should businesses considering making the vaccination mandatory do?
Although the government has not ruled out making the COVID-19 vaccination mandatory for certain industries, based on recent announcements it appears that this is unlikely to happen any time soon.
Businesses considering making the vaccination mandatory should obtain legal advice.
Businesses may also consider including terms relating to COVID-19 vaccinations in any new contracts and/or enterprise agreements.
By Megan Bowe & Emma Croskery