Can my employer force me to be vaccinated as part of my job?

Can my employer force me to be vaccinated as part of my job?

As a result of the COVID-19 pandemic, many workplaces have made plans to alter schedules and company policies to reflect health and safety procedures and government guidance. Some companies may already have policies which include mandatory vaccinations such as flu shots, subject to medical exemptions. Recent developments in the United States, Great Britain, and Europe indicate that it will not be long before vaccinations for COVID-19 become widely available. If successful, companies may decide to make the COVID-19 vaccination a mandatory condition of employment. Airlines such as Qantas are already indicating their customers will be required to be vaccinated to use their services. It would follow that employees of such businesses would be required to be vaccinated as well. These developments have the potential to open a proverbial can of worms for employers and employees, given that a COVID-19 vaccine may be initially somewhat experimental and given the recent rise of the ‘anti-vax’ movement.

The legal framework that exists under current legislation indicates there will likely be different approaches to the issue of enforced vaccinations between industries. For example, if an employee works in the medical and aged care sector (including laboratories), the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020, assented to on 24 March 2020, requires all vaccines to become compulsory for all healthcare workers including, but not limited to, doctors, nurses, and ambulance workers. This Act also requires all staff working in hospitals, such as cleaners and other contractors, to comply with the legislation to minimise the spread of preventable infectious diseases from patients to healthcare staff. Employees are required to be vaccinated according to a three-tiered schedule, as per the Department of Health and Human Services, depending on whether you have regular contact with blood and other bodily fluid. 

Employers must produce or demonstrate their employees’ immunity to the Department of Health. As such, any action taken against an employee if they have not complied with this direction from the Department of Health would likely not amount to discrimination against the employee’s political/religious belief or activities under relevant discrimination legislation. 

In relation to other industries, the state and federal government have released recommendations for particular workers in the private sector to keep to schedule with their vaccinations. This includes, but is not limited to:

  • childcare workers
  • carers of people with intellectual disabilities
  • carers of older people
  • laboratory workers
  • workers in contact with animals
  • workers exposed to human tissue, blood, bodily fluids, or sewage, and
  • emergency and essential services workers.

In light of these recommendations, some private companies have already updated their vaccination schedules and requirements. The Victorian Charter of Human Rights and Responsibilities only applies to government sector work, and thus private companies can set rules and schedules as part of their Workplace Occupational Health and Safety Plans because they hold a common law and statutory duty of care over customers and their staff (see e.g. Black v Warwick Shire Council [2009] QSC 123). In anticipation of a vaccine for COVID-19, if the Victorian Government mandates that individuals must vaccinate (Public Health and Wellbeing Act (Vic)), private companies may update their schedules to reflect the government mandate. In practice, as long as a vaccination direction is reasonable and proportionate employees could theoretically be dismissed from their employment for refusing to have a COVID-19 vaccination.   

If you have been dismissed from your employment and believe the decision was disproportionate, unreasonable, or motivated by an unlawful reason, you should contact employment law specialists immediately. 

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