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.”
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