An increasing number of workplaces across Australia both in the public and private sectors have introduced requirements for their employees to be vaccinated for COVID-19.
As the pandemic continues, it is important to know what your rights and obligations are if your employer requires you to be vaccinated.
Can my employer require me to get vaccinated?
Your employer may require you to get vaccinated if the requirement arises under any of the following1:
- A specific law, including a public health order, or
- A workplace contract or agreement, including enterprise agreements, or
- A lawful and reasonable direction by your employer.
What is a 'lawful and reasonable' direction?
Whether a direction by your employer requiring you to be vaccinated is lawful and reasonable depends on the specific circumstances of your case.
A number of factors will need to be considered including your workplace setting, your duties at work, the availability of alternative working arrangements such as working from home, and whether you have a legitimate reason for not getting vaccinated.
Additionally, a decision made by the Full Bench of the Fair Work Commission on 3 December 2021 regarding employees at BHP's Mt Arthur Coal Mine indicates that in order for workplace vaccination directions to be reasonable, employers should ensure that the direction is preceded by genuine workforce consultation.
Overall, recent legal developments suggest that such directions will in most cases be lawful and reasonable, particularly in any workplaces where employees physically interact with other employees, customers, clients or members of the public.
Courts have upheld public health orders requiring vaccination
On 15 October 2021 in Kassam v Hazzard, the Supreme Court of New South Wales dismissed a challenge brought by ten workers against public health orders that required them to be vaccinated for COVID-19 before they could leave the areas of concern in which they lived and attend work.
The workers came from various sectors including, health, aged care, education and construction.
Justice Beech-Jones of the Supreme Court found the public health orders to be lawful and reasonable, and stated that they were "exclusively directed to public safety" and did not infringe upon the right to bodily integrity.
On 10 November 2021 in Larter v Hazzard, the Supreme Court dismissed another challenge against similar public health orders which was brought by a paramedic who refused to get vaccinated on religious and moral grounds.
Justice Adamson of the Supreme Court held that the public health orders were a reasonable and appropriate way of dealing with the increased risk of COVID-19 transmission posed by unvaccinated health workers.
Can I refuse to get vaccinated?
There are likely to be only limited circumstances where you may be able to refuse workplace vaccination mandate, such as if you have a medical condition which makes it unsafe for you to get vaccinated.
Whilst your employer cannot compel you to get vaccinated against your will, as an employee you do have an obligation to follow your employer's lawful and reasonable directions.
Therefore, your employer may be able to take disciplinary action against you, including termination, if you fail to comply with a lawful and reasonable direction to get vaccinated.
Can I be dismissed for not being vaccinated?
It is possible that refusing to comply with a COVID-19 vaccination mandate by your employer may constitute a "valid reason" for termination of employment for the purposes of the Fair Work Act.2
Earlier this year, in Jennifer Kimber v Sapphire Coast Community Aged Care, the Full Bench of the Fair Work Commission upheld the dismissal of an aged care worker who was terminated from work after refusing to get an influenza vaccine without a valid exemption.
The Fair Work Commission confirmed that directions to be immunised against influenza were lawful and reasonable and not discriminatory.
The Majority of the Full Bench went on to state that "[they] do not intend, in the circumstances of the current pandemic, to give any encouragement to a spurious objection to a lawful workplace vaccination requirement."
The Fair Work Commission's position can therefore be expected to extend to any lawful and reasonable Covid-19 vaccination mandates.
What if I have an adverse reaction to the vaccine?
If you experience any adverse side effects after getting your COVID-19 vaccination, you should urgently seek medical advice from a doctor.
You may also report your side effects to state health authorities and/or to the Therapeutic Goods Administration.
The Australian Government has launched a Covid-19 vaccine claims scheme to reimburse people who have suffered a moderate to significant adverse reaction to approved Covid-19 vaccines. To check if you are eligible for the scheme, read the scheme policy, or register your interest in making a claim, you should visit the Department of Health website.
Additionally, if you suffer an injury or illness as a result of getting a COVID-19 vaccination as required by your employer, and your employment was a substantial or main contributing factor to the injury or illness, you might be entitled to workers compensation.
We can help
If you have suffered an injury or illness as a result of being vaccinated for work, Carroll & O'Dea has experts in compensation who can provide further advice and help you identify your best course of action.
Alternatively, if yo u believe you have contracted COVID-19 in the workplace you may have rights under workers compensation. We can also help you if this is the case.
2 Fair Work Act 2009 (Cth) s 387.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.