Can you make your employees get the Covid-19 vaccine?
What seems like a simple question (at least to AstraZeneca and Pfizer!) is not as straightforward as some would like. The simple answer is that it depends on what type of business you have. If it is mandated by law or if you operate in an industry in which vaccination is critical for workers to safely perform their job (think hospitals, aged care, airline workers, and other industries that involve extensive physical interaction), an employer can ask its staff to check their Covid-19 vaccine eligibility and be vaccinated as a requirement for their employment.
If, however, you have a business where employees can work remotely or where the nature of the work allows limited face-to-face interaction (think an office, call center, and the like), then it may not be reasonable to require employees to be vaccinated.
We all know that employees must comply with their employer’s directions if (and only if) those directions are lawful and reasonable. An employee who fails to do so may be subject to disciplinary action, up to and including dismissal.
But what is a lawful and reasonable direction?
Employers must apply the ‘lawful and reasonable’ standard to all directions they make in relation to Covid-19, and the business generally. For example, an employer must ask itself if the vaccination is necessary to eliminate or minimise a realistic risk of Covid-19 infection in the workplace, to the extent reasonably practicable and consistent with the employer’s existing legal obligations (such as its work, health & safety obligations).
Several things will impact if an employer’s direction is lawful and reasonable, including:
- the nature of work being performed by particular employees;
- the nature of the clients and other stakeholders;
- whether employees can work remotely;
- whether the employer provides options for employees to be exempt from the directive (for example for religious or medical reasons);
- the availability of effective alternatives to vaccination (such as the use of personal protective equipment);
- whether the direction constitutes discrimination (eg. where only a certain ethic group or minority are required to be vaccinated);
- whether the employee can perform the inherent requirements of their position without being vaccinated; and
- the advice and requirements of government and medical professionals from time to time.
Key Takeaways
Can you force your employees to have the Covid-19 vaccine?
Not unless you operate a business where it is critical for workers to safely perform their job and vaccination is a key requirement to manage, among other things, your work, health & safety obligations or to otherwise comply with a Government order or directive.
Can you make employees provide evidence to demonstrate they’ve been vaccinated?
Only where it is reasonably necessary for the functions and activities of your business, such as to manage and keep up-to-date your work, health, and safety practices and your employees agree to provide you with this information. If, however, you’re collecting the information to gauge the level of vaccinated -v- unvaccinated employees in your business, or for some other purpose, then the answer is no.
Can the staff without Covid-19 vaccine be forced to stay home?
Not unless they are unwell. An employer cannot exclude an employee who is not vaccinated from the workplace. Being unvaccinated does not present sufficient risk to the Company’s work, health & safety to justify such a direction being made to staff.
Can an employee refuse to attend work because others are not vaccinated?
Nope. Provided the workplace is safe, an employer can require their employees to attend work. A fear of unvaccinated employees is not a sufficient basis for an employee to refuse to come into work.
If you have any HR or personnel questions, contact our business lawyers.