COVID-19 vaccine: Can employers force prospective employees to be vaccinated?

HRD explores whether employers can force prospective workers to be vaccinated

COVID-19 vaccine: Can employers force prospective employees to be vaccinated?

As the vaccine rollout continues across Australia, employers continue to wonder about their legal right to mandate vaccinations.

Prime Minister Scott Morrison has previously said the government would not be forcing Australians to have the jab. But NSW Premier Gladys Berejiklian said she supported the idea of an incentive scheme for businesses to encourage people to be vaccinated. Qantas boss Alan Joyce has echoed similar sentiments, saying in future, all passengers would need to prove they’d had the jab before boarding a flight.

While there is no law preventing mandatory vaccinations, any direction must be ‘reasonable and lawful’, according to the Fair Work Commission. But what about prospective employees? Can the requirement for a COVID-19 vaccination be included in an employment agreement?

HRD spoke to Nick Duggal, lead partner of the employment team at Moray & Agnew about where employers stand on new hires.

“It needs to be considered whether vaccination is necessary in order to fulfill the inherent requirements of the position,” he said. “In high-risk industries or industries which need to comply with other government directions, it is possible that it's an inherent requirement of the position.”

Read more: Fair Work Commission gives go ahead for vaccine refusal case

During the pandemic, the Victorian deputy chief health officer made a direction which required any person attending a residential aged care facility to have an up-to-date vaccination against influenza. As a high-risk industry, the case for mandatory vaccinations is far simpler than other sectors. Similarly, in the healthcare sector, as of 2018 it became mandatory in NSW for hospital doctors and nurses who work in high-risk patient wards to be vaccinated against the flu.

Earlier this year, an aged-care worker filed an unfair dismissal claim after she was let go from her job at Ozcare after refusing the flu vaccination. The company had updated its policy as a response to the pandemic to make the vaccination mandatory.

The employee said she had experienced a bad reaction to a vaccination as a child and refused on medical grounds, but Ozcare said she failed to provide evidence. Employers will no doubt be keeping a keen eye on the case once it comes to court, as it could set a precedent for future vaccination policy.

Read more: Facebook: COVID-19 vaccine not mandatory for staff

Duggal said the legal basis for a mandatory vaccination policy – that any direction is “lawful and reasonable” - remains the same for existing and new employees.

“If it is going to be directed then any grounds for refusal need to be carefully examined. For example, if there are any discrimination grounds which form the basis for refusal,” he said. “An employer is still entitled to consider whether being vaccinated potentially constitutes an inherent requirement of the position, which for some industries, it might.”

On the topic of an employer enforcing a vaccination policy, Fair Work says even where a term of a contract or an agreement applies to coronavirus, employers and employees will need to consider whether the term complies with anti-discrimination laws. Protected characteristics that are likely to be relevant in considering whether to require vaccination include disability, pregnancy or religious beliefs.

It recommends that if an employee has a medical reason or refuses on a ground protected under anti-discrimination law, the employer should explore alternatives to vaccination such as PPE or relocating that staff member to another role.

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