The emphatic answer is …
… it depends.
The Federal Government has said it will not mandate COVID-19 vaccination in the workplace. Therefore, it may be left to State and Territory Governments to do so, using their powers under workplace health and safety rules.
Questions surrounding whether mandatory COVID-19 vaccination is lawful and reasonable are subjective.
The issue boils down to the duty of care of the employer to clients and other employees, assessed against rights of the individual employee, and the rights of other employees to a safe workplace.
Whether the request is reasonable will depend on several factors, including:
- The nature of the particular business
- Any specific workplace health and safety rules in effect in that business
- The nature of the particular work of the employee including proximity to clients
- Ability to work from home
- Availability of other measures such as social distancing and the use of personal protective equipment (PPE)
- Legitimate objections of employees, for example, on religious or medical grounds.
Uncharted waters
The world’s population has been in uncharted waters. These particular circumstances are unknown in most of our lifetimes. It is probably true that the majority see the availability of the COVID injection as a huge step forward, but the combination of both it, the many and varied workplace arrangements, and our individual rights, all transpire to make for potentially complex situations.
Most workplace issues can be resolved in the workplace, but many employer groups are seeking more defined guidance.
Precedents available relate to, for example, the enforcement of the ‘flu vaccination upon an employee. Those cases show that the test of whether enforcement is reasonable in an individual circumstance does not necessarily hold true for all circumstances.
What about Santa Claus?
Yes, really … Let’s transport ourselves forward to next Christmas. Could an employer who hires people to dress up as Santa Claus at shopping centres require those folks to have a COVID-19 vaccination? Distancing is impossible, the target audience is vulnerable–children and grandparents–protective equipment is unworkable. What is the greater good here? What are the rights of the Santa? What is reasonable? The Fair Work Commission has, interestingly, been deliberating on the vexed issue of a Santa in Queensland who was dismissed for not having a ‘flu vaccination for medical reasons.
As you can see, each case must be judged individually, and unsurprisingly, authorities are unwilling to provide blanket rulings.
What if?
Moving away from the employer, the client, and the employee, what about fellow employees who also have individual rights? What if such a co-worker decided to stay at home until the workplace is deemed by them to be safe when all employees have been vaccinated? How should the employer deal with them? What is reasonable?
And then?
If all employees have been vaccinated, can an employer demand to see evidence that such has occurred, or must they take the word of their employee? If they do obtain such evidence, can they lawfully show that evidence to other concerned employees?
The possibilities during these times are many and varied. Common sense, and the common good, make a good starting point.
Nevertheless, it is wise to seek wise counsel. We may not be Santa Claus, but we are certainly here to help – we are all in this together, and it will be much easier with sound legal advice from the experts. Owen Hodge Lawyers. We are here to help.