GUEST POST BY MARTIN ALDEN & JESSICA CIRNIGLIARO, CORNWALL’S
For many businesses and organisations, Victoria’s fourth lockdown has brought into sharp focus the desire to have their workforce fully vaccinated for COVID-19. Understandably, businesses and organisations wish to avoid the disastrous effects of having all or part of their operations temporarily shut down due to experiencing a COVID-19 outbreak at their workplace.
Can employers direct their employees to get vaccinated for COVID-19?
Employers may only require their employees to get vaccinated if such a direction is lawful and reasonable. What is considered lawful and reasonable will depend on the particular circumstances of each case.
While this issue remains largely untested when it comes to Covid-19 vaccinations, case law involving employer directions for flu vaccinations indicates that it is only likely to be lawful and reasonable to require workers to get vaccinated if they are employed in high risk industries, such as aged care or healthcare.
For example, in the recent case of Glover v Ozcare  FWC 2989, the Fair Work Commission upheld the dismissal of a Care Assistant at an aged care home who refused a compulsory flu vaccine because she had an allergy. Commissioner Hunt commented that the employee’s role ‘was not that of a widget maker in a widget factory where her status as an unvaccinated employee might not matter’.
Therefore, unless an employer operates in a high risk industry, it is likely they cannot lawfully require their employees to get vaccinated for Covid-19.
Can employers actively encourage or incentivise their employees to get vaccinated for COVID-19?
In the absence of being able to lawfully direct employees to get vaccinated, employers may wish to consider encouraging or incentivising employees to get vaccinated, for example by providing paid leave.
However, employers should ensure that any action taken to encourage or incentivise employees to get vaccinated does not breach the applicable anti-discrimination laws. In particular, individuals who are unable or unwilling to get vaccinated due to prevailing medical conditions or religious beliefs may contend that they are being treated less favourably in their employment by not being offered paid leave or any other specified benefits to get vaccinated.
It is also possible that employers may be held liable if any employees experience blood clots or other harmful side effects from taking the vaccine under their direction or assistance.
Implications for employers
In the absence of having a fully vaccinated workforce, it is prudent for employers to take all steps that are reasonably practicable to try to avoid a Covid-19 outbreak at their workplace, including measures beyond the minimum requirements prescribed by Government specifications and Chief Health Officer directions. For example, employers may wish to consider implementing ‘work bubbles’ whereby groups of employees are divided up and rostered to work only with other staff in their particular bubble. In the event one worker contracts Covid, it is possible that only the employees in their bubble will need to quarantine and not the entire workforce. Such a strategy is obviously subject to the employer’s operational requirements.
For further information regarding the above, please contact the authors, Martin Alden, Partner, at firstname.lastname@example.org, or Jessica Cirnigliaro, Lawyer, at email@example.com.