What is a reasonable direction? – What employers need to know about mandating vaccines

Published August 23, 2021 Author: Employsure
Mandating Vaccines

As an increasing number of Australians roll up their sleeves to get a COVID-19 vaccination, it has caused confusion among employers as to what their workplace vaccination rights, responsibilities and options are.

Many companies have taken different approaches to promote the jab. In some cases, most recently with Australian companies SPC and Qantas, the COVID-19 vaccine has been made mandatory for employees.

Previous COVID-19 vaccine mandates have generally been made by governments under public health orders. As such, while employers may seek to mandate vaccinations for the health of their staff, there is currently no explicit law in legislation for employers to direct their employees to comply with outside of specific industries and occupations.

“Those who want their staff vaccinated may see themselves hit with an unfair dismissal claim if an employee were directed to be vaccinated and sacked as a result of refusing the jab,” said Larry Drewsen, health and safety manager at Employsure, Australia’s largest workplace relations advisor.

“The Fair Work Ombudsman has however, under new proposed guidelines, given the go-ahead to employers in certain ‘high-risk’ industries to mandate COVID-19 vaccinations if the direction is considered lawful and reasonable.

“There are many factors at play when determining if the direction is ‘reasonable’, such as the location of the business in Australia, vaccine availability, the prevalence of community transmission of COVID-19, employees’ individual circumstances, the risk of infection in the workplace, as well as what is set out in the relevant employment contract, award or agreement.

“Generally, it is unlikely that a direction to be vaccinated would be reasonable if an employee worked 100% remotely. A general guideline is if the employer is unsure, they should seek legal advice.”

Employers have a duty of care under WHS laws and must do everything reasonably practicable to reduce the risk to health and safety in the workplace. Vaccination can be considered as one way to achieve this, but all reasonable measures to control the risk of transmission and infection should be considered.

Employers must consult with workers regarding risk management strategies, which may be an excellent opportunity to discuss a vaccination program and discuss any concerns. If employers are unable to mandate that employees get a COVID-19 vaccine, they can encourage them to receive one. Employers can suggest staff get the vaccine and provide them with relevant government health advice.

Unless it is lawful and reasonable in the circumstances for employers to require employees to disclose their vaccination status or provide a reason for their refusal to be vaccinated as part of a mandatory vaccination policy, workers do not have to tell their employer if they have been vaccinated, or even give a reason behind it.

In circumstances where employers cannot reasonably direct their employees to receive the COVID-19 vaccine, employers should consult with employees who are unable, or don’t want to have the jab, and discuss alternative measures that can help them do their job safely.

To keep better track of employees and possibly identify any trends occurring, business owners should use employee management software such as BrightHR to manage sickness, rosters, work locations and COVID-19 vaccination status.

The Federal Government has stated its policy is not to mandate COVID-19 vaccinations in Australia. While vaccinations form part of a business’ methods of controlling the risk of infection, employers must ultimately have other plans in place if workers refuse. 

Media Enquires:

Matthew Bridges
[email protected]

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