Can we require staff to have the COVID-19 vaccine?

With Australia’s largest vaccination program ever kicking off next month, many businesses are looking forward to moving further towards ‘normal’ operations. And central to this will be making sure that as many staff as possible get the COVID-19 vaccine.
But can Australian businesses require their staff to be to be vaccinated against COVID-19? And even if they can, should they? What other strategies can your business use to encourage vaccination, and best protect your workforce and business from the ongoing risk of COVID-19? Our blog takes a look at some of these novel questions.
1. Can your business make the COVID-19 vaccination mandatory?
If your workers deal with vulnerable populations, or in workplaces where social distancing is just not possible (‘high risk workplace’), it is (at least) arguable that you can consider mandatory COVID-19 vaccine to be an ‘inherent requirement’ of the roles of relevant employees.
Put simply, inherent requirements are the essential or fundamental requirements of an employee’s role – and an inability to meet them might justify not recruiting a candidate or dismissing an employee. It is an inherent requirement of every role that the employee is able to work safely (i.e. risks to the employee and to others are mitigated so far as is reasonably practicable) and comply with work health and safety laws.
For high risk workplaces, elimination of the COVID-19 transmission risk, so far as is possible, may be the only way that roles can be safely performed (and thus the only way that one of the inherent requirement of their roles can be fulfilled). High risk workplaces would likely include:
- aged care facilities, hospitals, medical and other health care facilities, as well as sites at which in-home care is provided to the vulnerable (e.g. home nursing, aged care support and disability support work); and
- schools, childcare centres, and other work locations where social distancing or remote working are simply not possible.
- changing the individual’s duties or work location, or making other reasonable adjustments for them;
- implementing a disciplinary process; or
- in some circumstances, dismissal.
- how worker objections to the vaccine will be managed confidentially and efficiently;
- what evidence can be obtained to substantiate an employee’s objection (e.g. a detailed medical certificate, evidence from a recognised religious body?) so that the business can determine whether it is a legitimate objection; and
- if a worker has a legitimate objection to the vaccine, what process will be used to determine whether reasonable adjustments or alternative arrangements can and will be made in respect of that worker?
- putting in place a policy requiring unvaccinated employees to work from home or take sick leave if they have any symptoms associated with COVID-19, pending a negative COVID-19 test;
- if necessary, updating employment contracts, policies, and labour hire arrangements; transparent and consistent communication about the business’ approach to the vaccine and management of risks relating to COVID-19;
- appropriate training for managers and human resources about the business’ approach to the vaccine;
- offering the COVID-19 vaccine free of charge;
- offering paid time off work to get the vaccine.