Can my employer make it mandatory that I am vaccinated?

A topic subject to discussion is whether your employer can require you to have had the Covid-19 vaccination before returning to work. This highly contested question is one that is currently under scrutiny by legislatures, Courts and the Fair Work Commission, given that it requires a new reading of what constitutes a ‘lawful and reasonable direction’ of an employer.

There are only three circumstances in which your employer can require you to be vaccinated. That is:

• when a specific law (such as a public health order or workplace health and safety legislation) requires an employee to be vaccinated;
• the requirement is permitted by an enterprise agreement, modern award and/or employment contract; or
• it would be lawful and reasonable for your employer to direct you to be vaccinated which is assessed on a case by case basis.

Legislation and Public Health Orders

The NSW Government has issued public health orders requiring Covid-19 vaccination requirements for industry-specific workers including quarantine workers, transportation workers and airport personnel.

The NSW Government has recently introduced vaccine requirements for:

1. authorised workers leaving a Local Government Area (LGA) of concern;
2. construction workers living in an LGA of concern; and
3. certain early education, care facility and disability support workers living in an LGA of concern.

Therefore, employees captured by the recent public health orders are required to be vaccinated.

Agreements or Contractual Arrangements

Industry specific enterprise agreements may be varied to contain terms relating to mandatory Covid-19 vaccinations. Employers may also begin incorporating a term about coronavirus vaccinations in their employment contracts for current and prospective employees.

The enforceability of those terms depends on whether it is lawful and reasonable in the circumstances. For instance, it should account for anti-discrimination laws and medical exemptions and therefore should be carefully drafted so as to not render the clause null and void. We recommend contacting Antunes Lawyers to discuss variations to your contracts.

Lawful and Reasonable Directions

In order for a direction to be lawful, it must comply with any respective legislation, delegated regulations, modern award, enterprise agreement and employment contract that applies.

The reasonableness of a direction varies on a case by case basis and accounts for the following factors:

• the nature of the workplace (for example, essential services, hospitality and tourism industry);
• the risk of community transmission of Covid-19;
• the effectiveness of vaccines in reducing community transmission;
• work health and safety obligations;
• the roles and responsibilities of the respective employee;
• whether an employee has a legitimate reason for not being vaccinated; and
• vaccine availability.

The NSW Government guidance separates classes of employees into four tiers, with tier one consisting of employees at a higher risk of acquiring and transmitting the coronavirus. We’ve simplified the tiers as follows:

A few tips for determining whether your tier warrants a reasonable direction to be vaccinated includes:

• acknowledging that tier one and two workers will most likely require mandatory Covid-19 vaccinations due to the increased exposure and higher risk of community transmission;
• whether no community transmission of Covid-19 has occurred in area the employer is located;
• whether the employer is an essential business required to remain open during a period of lockdown or community transmission; and
• consideration of alternative working arrangements and remote working.

Next Steps

Are you unsure if your employer can lawfully and reasonably direct you to get vaccinated? Perhaps you are an employer uncertain as to what rights and regulations apply to your business model.

The employment law team at Antunes Lawyers has the knowledge and experience to provide advice tailored to your specific circumstances. Contact us on (02) 9964 0499 for a no-obligation consultation.