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Last week, the first phase of the much-anticipated Pfizer vaccine was rolled out across the country. For many, the vaccine is welcomed with open arms, bringing feelings of relief and hope that the uncertain times brought by COVID-19 may soon be over. For others, the vaccine may be ill-favoured because vaccination is contrary to their personal beliefs, religion and / or practices.

With such vast opinions on the vaccine circulating, the rollout has ignited debate over the rights of persons and in particular, what power an employer has in developing and enforcing vaccination policies for its employees.

As it currently stands, there is no government regulation or other law in South Australia which makes it mandatory for persons to have the Pfizer vaccine.  However, pursuant to work health and safety legislation, employers have an obligation to eliminate or minimise the risk of incidents which could impact the health and safety of its staff. This could be interpreted to also include the exposure to COVID-19 in the workplace.

Below we answer some questions which employers may have regarding the COVID-19 vaccination and its staff:

 

1. Can I make it a requirement for my employee to be vaccinated?

Given there is no current South Australian legislation which provides an employer a right to enforce vaccination on its staff, and more importantly, there has been no real precedent setting case law developed to identify any specific circumstances which would alter this position, employers should assume they have no right to request their employee to be vaccinated.

 

Whilst this is so, information published by the Fair Work Ombudsman indicates that it may be possible, under limited circumstances, for an employer to require their employees to be vaccinated. In determining whether such a request by the employer is reasonable, various factors should be taken into account such as any specific law or regulation that may be introduced that requires an employee of a certain industry to be vaccinated (for example, in Victoria the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020 requires workers employed in public hospitals and health care establishments to be vaccinated against certain diseases) and / or the employee or employer’s personal background or conditions which support the request. Given the uncertain and complex nature of this matter, we strongly suggest you seek legal advice prior to making any attempt to enforce vaccination on your staff.

 

2. What can I do if an employee refuses to be vaccinated?

The answer to this question goes hand in hand with question one above, specifically that unless you are able to ascertain that you have a right to enforce vaccination on your staff, then you will not have a right to take any action against them if they refuse your request. Accordingly, should you be thinking about taking disciplinary action and / or terminating a staff member for not having the vaccination, we suggest seeking legal advice prior to doing so. In the event you take disciplinary action and / or terminate a staff member without having the right to do so, you may be exposed to an unfair dismissal claim and / or discrimination claim being made against you by the former employee.

 

3. How do I maintain compliance with work health and safety (WHS) obligations in relation to COVID-19?

WHS legislation and common law require employers to provide a duty of care and have procedures in place to minimise the risk of incidents which could impact the health and safety of its staff in the workplace (which would be include the risk of exposure to illness or disease such as COVID-19). The general rule of thumb is that an employer must do what is ‘reasonably practicable’ to fulfil this obligation. Accordingly, whilst you can encourage employees to get vaccinated against COVID-19, it is not the only way to minimise the spread of the virus and there are other ways in which you may adhere to your WHS obligations.  For example, you could encourage good hygiene. You should also ensure proper enforcement of government directions in the workplace, such as complying with the physical distancing and density requirements. You may also be required to have a COVID Safe Plan and / or have a trained COVID Marshall. You could also take steps to enhance sanitising and cleaning within the workplace and minimise or eliminate communal use of objects.

 

Given the live debates currently surrounding the Pfizer and other COVID-19 vaccines, we anticipate the law in relation to it, to evolve quickly. Accordingly, it is important that you do not rely on the information provided in this paper as being current at the time of reading. Rather, we encourage you to seek legal advice for the most current and up to date information.

 

Contact Clarke Hemmerling Lawyers on (08) 8333 2130 If you are uncertain whether a direction or an employee’s refusal is reasonable and let us advise you on your legal position and possible course of action.

 

This Blog was written by Renee Hii, Solicitor at Clarke Hemmerling Lawyers.

This blog post does not constitute legal advice and should not be relied upon as such. It is a general commentary on matters that may be of interest to you.  Formal legal or other professional advice should be sought before acting or relying on any matter arising from this communication.