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Woman getting vaccinated

Australia’s rollout of the COVID-19 vaccine has largely been welcomed with relief. According to the Department of Health, widespread vaccination against COVID-19 is expected to significantly slow community transmission of the virus, therefore reducing the need for preventative measures like border closures and travel restrictions[1].

However, a question that’s been asked a lot recently is: can your employer make you get vaccinated?

Can my employer make me get vaccinated?

There are no laws or public health orders requiring people to get vaccinated against COVID-19. Getting vaccinated is voluntary. The Fair Work Ombudsman has recently advised that most employers should assume they won’t be able to force employees to be vaccinated.

However, there are some situations where an employer can direct their employees to be vaccinated. An employer’s direction for their employees to be vaccinated is only enforceable if it is lawful and reasonable when all circumstances are considered.

What is a lawful and reasonable direction?

To answer this question, we’d need to consider the specific circumstances in each case.

A direction will be considered ‘lawful’ if it falls within the bounds of the employment contract and doesn’t break any other laws[2]. In general, a direction to be vaccinated against COVID-19 will be lawful.

Whether a direction is reasonable, however, will depend on the nature of your job and what is sensible and/or logical in that context.

Case Example
For example, in Arnold v Goodstart Early Learning[3], the employee was making a claim for unfair dismissal after being dismissed from her job in a childcare centre for refusing a flu vaccination, without a medical or health-related exemption. The employer argued that being vaccinated was a lawful and reasonable direction.

In that case the employer had a policy requiring mandatory vaccination. The Fair Work Commission ruled that the employer’s policy was “lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason.

The reasons why you object to the vaccination may also be relevant. For example, if you have a legitimate religious or medical reason for refusing the COVID-19 vaccine, this will have to be taken into account with all the other circumstances of your employment.

What if I object to getting the vaccine?

If your employer is directing that you have the COVID-19 vaccination but you object to it, for example, because of a medical condition or on religious grounds, then you should:

  • Collect evidence to support your objection;
  • Consider what other measures can be taken to reduce or eliminate the risk to you or to others if you don’t have the vaccination (such as social distancing and hygiene practices); and
  • Consider your customers or clients: do they have any special vulnerability, or are they more likely to spread the illness?
  • Consider your industry, your workplace and the way that you work: are you at higher risk? Is the illness more likely to spread quickly in your workplace?
  • Consider whether the direction is consistent with the advice and recommendations of public health experts.

You should also consider seeking legal advice before refusing to comply with your employer’s direction.

Depending on the industry you work in and the terms of your employment, your employer may take disciplinary action or terminate your employment for refusing to be vaccinated.

For example, if you work in a hospital, or aged care facility it’s likely that refusing vaccination could constitute failure to follow a lawful and reasonable direction and form a valid reason for termination, because in these workplaces you will be working with people who would be particularly vulnerable if they were to contract COVID-19. The nature of these workplace is also such that if someone contracted COVID-19 it would be more likely to spread within the workplace. In hospitals in particular, you’d also be at higher risk of exposure.

Isn’t it discriminatory for them to fire me for choosing not to vaccinate?

The short answer is that it depends. If you choose not to vaccinate for a protected reason (like a medical condition) and your employment is terminated as a result, you may have a claim against your employer. The grounds of your refusal and your employer’s reasons for termination in each case will need to be assessed.

Case Example
In Glover v Ozcare[4], the employee, an in-home carer, refused the direction of her employer to receive a flu vaccination, which she had done so in previous years. However due to the additional risk of COVID-19 further endangering elderly clients, the employer stopped rostering her for shifts, effectively terminating her employment. The Fair Work Commission noted:

…each circumstance of the person’s role is important to consider, and the workplace in which they work, in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction. Refusal of such may result in termination of employment, regardless of the employee’s reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector.

If you are experiencing a workplace issue related to the vaccine, please contact Slater and Gordon Lawyers for assistance.

[1] Australian Government Department of Health

[2] [2015] FCA 1374

[3] [2020] FWC 6083

[4] [2021] FWC 231

The contents of this blog post are considered accurate as at the date of publication. However the applicable laws may be subject to change, thereby affecting the accuracy of the article. The information contained in this blog post is of a general nature only and is not specific to anyone’s personal circumstances. Please seek legal advice before acting on any of the information contained in this post.

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