Covid vaccine mandates: are you able to be required in Australia to get the jab? | Vaccines and immunisation

Scott Morrison has put the issue of vaccine mandates firmly in the hands of employers, saying on Friday government legal advice backs the view that bosses may be able to require workers to get a Covid-19 jab, particularly in high-risk fields.

With companies such as Qantas and SPC already indicating they will require staff to get the jab, employer groups and experts warn it is only a matter of time before the issue is tested in court.

So what is the current law around requiring vaccination – and is it ethical for employers to impose such a requirement?

Who is required to get a Covid-19 vaccination?

Australia’s policy is that Covid-19 vaccines are strongly encouraged but not mandatory.

Four states (New South Wales, Queensland, Western Australia and South Australia) have imposed public health orders requiring certain types of workers to get the vaccine. These include quarantine, transportation, airport, health services and aged care staff.

The national cabinet has also agreed that by mid-September all aged care workers will need to have had at least one dose.

Can employers require vaccination?

Employment law experts, including barrister Ian Neil and Adelaide University professor Andrew Stewart, have argued that employers’ common law power to issue “lawful and reasonable” directions could allow them to require staff to be vaccinated.

This view has been bolstered by two recent Fair Work Commission cases upholding the sacking of staff who refused influenza vaccines in child care and aged care settings.

On Friday, Morrison revealed the solicitor general had given national cabinet his view that the legality of requiring a vaccination depends on the “reasonableness of any direction made to an employee”.

Morrison said it was “very clear” that workers in quarantine facilities covered by public health orders could be required to be vaccinated.

He also suggested that it would be reasonable to require employees who “may be in direct contact potentially [with the virus], or [risk] becoming infected” to be vaccinated, such as airline workers.

“You have a second tier, which are those who may be working with people who are quite vulnerable,” he said, citing aged care.

“A third tier are those who are in a position where they are public facing in their daily work. So we’re talking about retail, supermarkets, things of that nature, working in essential occupations.”

Morrison did not commit to releasing the advice, but the Fair Work Ombudsman is updating its guidance to employers to reflect it.

Until now, the FWO had advised that “the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus”.

But it now states “official government advice has said that there may be situations where it is reasonable for employers to require an employee to be vaccinated”.

What is ‘reasonable’?

Professor Stewart told Guardian Australia that while “everything the prime minister said was accurate, it still leaves the position as clear as mud” because lawfulness of an order “comes down to what is reasonable”.

“It depends on the employer, on the employee, on the industry, where you are, on what the current circumstances regarding risks of community transmission are, and on time,” Stewart said.

He cited the example of Western Australia, where the low risk of community transmission might make a vaccination requirement unreasonable now, but reasonable in future outbreaks.

“You can’t have a blanket rule – there will always need to be exceptions made. But it would be good to know at least where the starting point is.”

Will governments require vaccination?

Morrison said that “it is not the intention of the commonwealth, nor of the states and territories, to create any special laws in these areas”. Meaning, if employers want to require staff to be vaccinated they will need to do it using existing laws.

Morrison noted that a direction to employees would “have to pass that reasonableness test, and they are ultimately decided by the courts”.

What does business say?

The Business Council of Australia has said any compulsion should be highly targeted to at-risk industries such as meat processing, manufacturing and healthcare; and led by state governments that can make public health orders, rather than being left to the employer.

The Australian Chamber of Commerce and Industry chief executive, Andrew McKellar, agreed, saying: “The best pathway towards mandating vaccines in workplaces is through clear public health orders.”

On Monday the Australian Industry Group chief executive, Innes Willox, said, “It’s almost certain that, as things stand, there will be a challenge, either through Fair Work or the courts, as to the right or ability of a company to oblige their workforces to be vaccinated. At the moment governments, state and federal, are just leaving this to employers. It’s a pretty untenable situation where employers are being left to their own devices to make decisions as to whether it is lawful and reasonable for them to mandate vaccinations.

Australian unions would also like public health experts to be the ones to determine which industries vaccines are required in, rather than leaving it up to the employer.

Is this discriminatory?

Morrison said the solicitor general had also advised on whether requiring staff or customers to be vaccinated could infringe discrimination law.

Under Australia’s discrimination law, it is unlawful to treat a person less favourably on the basis of protected attributes, including gender, race, disability or age.

“It would be unlikely that a person being vaccinated or unvaccinated would be related to whether they are of a particular gender, or whether they’re of a particular disability, or of a particular race,” Morrison said.

“Not having a vaccine is not a disability. But, of course, if people do have particular medical conditions or issues that might prevent them from being able to be vaccinated, well, of course, that would be a different issue.”

Stewart warned vaccination requirements could also constitute age discrimination, against younger people who were less likely to be vaccinated, or who refused AstraZeneca due to a higher risk of blood clots in their age group.

He said discrimination on the basis of political opinion was also arguable because of “the small but incredibly vocal minority of Australians opposed not on medical but political grounds”.

Is it ethical?

Dr Sarah Winch, the head of medical ethics at the University of Queensland, said that requiring employees to be vaccinated was “a lot more tricky” than requiring customers, who can choose not to patronise businesses such as restaurants or cruises that impose such a requirement.

“The notion of choice when it comes to working is fraught – we don’t really have that much choice if we say I won’t work for this person,” she said.

“And it could cause more harm than good: we need our aged care workforce, it’s largely trained on the job, they’re wonderful people, paid appallingly … for work most don’t want to do – then you’re going to say you have to have this injection, they may well walk.”

Winch said the “most ethical solution” should include some form of compensation for employees in the unlikely event of an adverse reaction to a vaccine.

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