With promising signs of a vaccine on the horizon, HRD looks into the legalities of employee vaccination
There are many promising signs that a COVID-19 vaccine will be available in the not-too-distant future.
Around 240 vaccines are in early development – with some clinical trials already in the final stage of testing on people.
In fact, most experts think one is likely to become widely available by mid-2021 - about 12-18 months after COVID-19 first emerged.
Once the vaccine is finally released to the general public, it will be the catalyst for a wide range of health and safety issues for employers.
The focus will then turn to whether employers can terminate employment or prevent employees from entering the workplace if they refuse to take the vaccine, according to Michael Michalandos.
The Asia Pacific head of employment law at Baker McKenzie told HRD that all employers have an obligation to provide healthy and safe workplaces, while employees have an obligation to take care of themselves.
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With each workplace having its own set of risks and responsibilities, the issues surrounding vaccinations will have to be considered on a case-by-case basis.
For example, consider an employer who is sending an employee to a dangerous location overseas where there’s a breakout of the virus.
Michalandos said it may be reasonable for an employer to say they are not prepared to send the employee unless they take the vaccine.
“There also may be instances in a workplace where an employer has grounds to say, ‘you need to take the vaccine before you attend a particular location’,” said Michalandos.
“If the employee is working in aged care then it may be more reasonable to have that expectation. There may also be a government requirement for employees working in sectors with patients to have the vaccine.”
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However, circumstances could be very different for those workplaces where the risk of infection is low.
He added that the courts have taken great care not to be too intrusive with issues such drug testing or medical testing.
“Employers really need to have solid grounds to say there is a high health and safety risk.”
Michalandos said it will also be important to consider if the vaccine causes any adverse effects, some of which are already being uncovered in the trials.
Dr Kylie Quinn, a vaccine researcher at RMIT, said that in order to understand if there are rare side effects in the vaccine trials, researchers need to vaccinate large numbers of people.
A recent participant in a UK trial recently came down with what AstraZeneca called "a potentially unexplained illness". The health news website STAT reported that it was a “serious adverse reaction”, but that the patient should make a full recovery.
“Some employees may have genuine reasons for refusing to take the vaccine and it’s important that employers take into account what those concerns may be,” said Michalandos.
“I would have thought that it would only be appropriate in those high-risk scenarios where not having the vaccine poses the employee or others at a high risk.”
Michalandos also suspects that it’s an area where the Government may intervene and provide direction.
“The Government has already been effective in providing guidance as to where employers should draw the line in terms of COVID-19 testing,” he said.
“So, it will really depend up risk assessment, how effective the vaccine is and what the side effects are. There is not going to be a black and white answer.”
It’s also important to consider the possibility that COVID-19 vaccinations become an industrial relations issue.
In circumstances surrounding drug-testing, Michalandos said the issue has evolved to becoming negotiated as part of an industrial arrangement.
“Although, I suspect the pro-vaccine argument is going to be a whole lot stronger than a drug-testing argument,” he said.