Covid-19 vaccine for employees

January 28, 2021

Covid-19 vaccine for employees!

Currently speaking, employers can make directions for employees to have specific vaccinations against common illnesses where they work in high-risk environments.

As a result of the pandemic, employers more broadly been faced with unfamiliar risks and circumstances that have challenged the rationale of high-risk environments.

Fundamentally, employers will be able to provide a direction to an employee to be vaccinated from Covid-19 under the “lawful and reasonable direction test”.

Employers will have to apply the lawful and reasonable standard to all directions made in this respect.

That is, an employee will need to ask themselves whether the vaccination is necessary to eliminate or minimise a realistic risk of Covid- 19 infection in the workplace, to the extent reasonably practical and consistent with the employer’s existing legal obligations.

These obligations can arise under the Fair Work Act 2009 and work health and safety legislation including both state and federal legislation.

Reasonableness should be assessed on a case-by-case basis considering a variety of factors including, but not limited to:

  1. the nature of the work being performed,
  2. the nature of the clients and other stakeholders,
  3. whether employees can work remotely,
  4. the advice and requirements of governments and medical bodies of the time,
  5. how advanced the success of aconite vaccination is at the particular time, and
  6. any other related circumstances.

If an employee refuses to be vaccinated and is treated adversely by the employer as a result, depending on an employee’s reasons for objecting to being vaccinated, the employee may claim protection under Commonwealth or state antidiscrimination legislation.

Comments by Deputy President Ashbury in Arnold v GoodStart early Learning Pty Limited [paragraph 32]

“While I do not go so far as to say that the Applicant’s case lacks merit, it is my view that it is at least equally arguable that the Respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason. Prima facie the Respondent’s policy is necessary to ensure that it meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/or medical conditions. It is also equally arguable that the Applicant has unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position, which involves the provision of care to young children and infants.”

The Happy HR contracts do allow for the amendment of policies & procedures from time to time and based on the comments made by DP Ashbury above, we recommend this being the best practice approach around employees receiving the Covid-19 vaccine. However, employers should also be aware of certain employee’s rejecting the vaccine and ensure that these employees are carefully managed to minimise the risk of litigation by way of an employee bringing an adverse action claim or unfair dismissal claim.

For any questions please don’t hesitate to contact us on 1300 730 880, email help@happyhr.com or book in for a free 15 minute consultation on http://54.253.2.209/15-minutes-of-free-hr-support/

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About the author: Christopher Smith - CEO

Founder | Chief Happy Officer at Happy HR - Ensuring we have a happy platform, service mix and team of A grade people! View on Linkedin

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