Can you mandate vaccinations in your organisation?

By Michael Selinger, Jennifer van Bronswijk, Natasha Jones, Julia Wyatt and Olivia Lawrence of Holding Redlich
The impact of the COVID-19 Delta variant across the country is challenging how governments, public health experts and employers respond to the COVID-19 pandemic. In this article, WOB Partner Holding Redlich law firm explores the legal basis for a mandatory vaccination policy and the key legal considerations for employers.

The Federal and State Governments have introduced vaccination targets of up to 80 per cent to combat the current outbreak and allow the easing of COVID-19 restrictions. However, following the meeting of National Cabinet on 6 August 2021, Prime Minister Scott Morrison has confirmed that, with the exception of limited public health orders for high-risk industries, the Federal and State Governments will not roll out a mandatory vaccination policy in order to achieve their vaccination targets.

Instead, the question of mandating vaccinations has largely been deferred to employers. Prime Minister Scott Morrison has indicated that for certain employers, it might be reasonable to require employees to be vaccinated. However, employers will bear the legal risk of ensuring a direction is lawful.

In NSW, as the positive case numbers continue to rise, the NSW Government has issued a number of public health orders which fall short of mandating vaccination, but which allow work in certain industries and in certain locations conditional on employees having received at least a single dose of a COVID-19 vaccination. As a result, employers are effectively faced with either requiring employees to be vaccinated, or stand down unvaccinated workers who cannot comply with the public health orders. 

On 12 August 2021, the Fair Work Ombudsman (FWO) released its updated guidance material on COVID-19 vaccination. The guidance from the FWO leaves the decision squarely with individual employers to determine whether it is lawful and reasonable to require their employees to be vaccinated.

While some companies, including SPC and Qantas, have announced mandatory vaccination policies, it is still to be seen whether these directions are lawful. Employers will bear the legal risk of their policies. As a result, many employers are questioning whether they can require their employees to be vaccinated.

Employers should carefully consider their own position and obtain legal advice before implementing a mandatory vaccination policy.

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