by Jerry Tucker
The Covid-19 vaccine rollout has been dubbed ‘one of the biggest workplace relations issues’ of the decade. The legalities around mandatory vaccinations for staff is an issue that business owners have been grappling with and the answer is not clear cut.
In Australia, employees are required to comply with a lawful and reasonable direction from their employer. What constitutes ‘reasonable’ ultimately depends on the circumstances of the business and the activities conducted at that workplace. It requires a consideration of the employee’s role, including the extent of their interactions with the public, and terms of their contract.
For example, if an employee’s role involves face-to-face interactions with vulnerable members of the community, such as the elderly, it may be considered reasonable to require staff to be vaccinated against Covid-19. Similarly, directions to undertake their work from home or another location, and to undergo regular Covid-19 testing have been considered reasonable given the current pandemic.
Thus far in Australia, vaccinations have been mandated for aged care workers, health workers, and quarantine workers. Business owners, who have been left with the decision whether to direct staff to obtain a Covid-19 vaccine, are approaching the issue with understandable caution. Prime Minister Scott Morrison has twice ruled out extending the mandates to workplaces outside of the health and quarantine sectors. In the absence of a decision from the Chief Health Officer or the Government, or any court reported decisions following litigation on the issue, business owners will need to consider whether, in all their business’ individual circumstances, a direction to mandate Covid-19 vaccinations is lawful and reasonable.
While it does not prevent a legal challenge, some considerations for business owners are:
- whether their industry is generally high-risk;
- the circumstances of the workplace, such as whether staff are in face-to-face contact with vulnerable members of the community;
- the requirements of the individual’s role; and
- whether staff can effectively socially distance.
Qantas have recently announced that Covid-19 vaccinations will be mandatory for all their 22,000 employees, following a global vaccination push by big businesses, including Google and Facebook which have banned unvaccinated staff from their offices. Similarly, in New South Wales, construction workers in nine NSW local government areas will need to be immunised against Covid-19 to be able to return to work, demonstrating that high risk or ‘hot spot’ areas may be another consideration to whether the lawful direction by employees is also reasonable.
If you are a business owner considering mandating Covid-19 vaccinations for your staff, it is worthwhile to consider the outcome if employees refuse to comply with the lawful and reasonable direction given, including standing down those employees or whether an alternate role can be accommodated.
If you are a staff member or business owner, our friendly team at BELAW are available to help navigate these issues and provide individually tailored advice.