Can Employers Implement a Mandatory Vaccination Policy?

Employers may be able to implement a mandatory vaccination policy where it is critical to staff safely performing their roles – despite the lack of a direct government order mandating COVID-19 vaccinations, according to a senior WHS and employment lawyer.

Swaab Partner Michael Byrnes said that in order to be in a posi­tion to issue such a direc­tion, an employ­er needs to be able to demon­strate that vac­ci­na­tion of employ­ees is an impor­tant con­trol mea­sure to pro­tect staff, clients and mem­bers of the pub­lic who inter­act with the work­place from the risk of COVID-19 infec­tion.

“This would, of course, large­ly depend on the nature of the employer’s busi­ness or under­tak­ing and the inher­ent duties of the employ­ees who would be sub­ject to the manda­to­ry vac­ci­na­tion direc­tion,” he said.

“The crit­i­cal ques­tion in rela­tion to those employ­ees: can they per­form the inher­ent duties of their posi­tion safe­ly with­out being vac­ci­nat­ed against COVID-19?”

Byrnes said an addi­tion­al con­sid­er­a­tion for employ­ers is whether there are any exten­u­at­ing cir­cum­stances that would make a manda­to­ry vac­cine direc­tion unrea­son­able and there­fore unlaw­ful in respect of a par­tic­u­lar employ­ee, such as those with med­ical con­di­tions.

Earlier this month, the Nation­al Cab­i­net agreed to man­date that at least the first dose of COVID-19 vac­cine be admin­is­tered by mid-Sep­tem­ber 2021 for all res­i­den­tial aged care workforce (see related article)

Byrnes said some employ­ers have cit­ed a lack of gov­ern­ment man­date as the rea­son why a sig­nif­i­cant per­cent­age of their staff have not been vac­ci­nat­ed to date – however, the climate was shiting.

“With the cur­rent trou­bling COVID-19 clus­ter in NSW, and a deep con­cern about the rel­a­tive­ly low rates of vac­ci­na­tion of staff in some indus­tries which deal with the sick and the vul­ner­a­ble, most notably aged care, the issue of manda­to­ry work­place vac­ci­na­tion has gone from being an inter­est­ing the­o­ret­i­cal con­sid­er­a­tion to a mat­ter of imme­di­ate prac­ti­cal concern.”

Read Bryne’s full report here.