Could your workplace force you to get a COVID-19 vaccine? Legal experts aren’t convinced

The rollout of the COVID-19 vaccine in Australia could lead to ugly disputes with anti-vaxxers in workplaces across the country, experts warn.

Overseas, employers are already lining up to insert “no jab, no job” clauses in employment contracts.

But here in Australia legal experts warn it’s a minefield with the prospect of ugly disputes with anti-vaxxers looming in workplaces across the country.

Both employers and service providers must comply with anti-discrimination laws and some workers may be able to refuse the vaccine on religious grounds.

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Vaccinating against COVID-19 is the easiest way for Australians to get their normal lives back, but millions are hesitant to get the jab.

Our Best Shot is news.com.au’s campaign answering your questions about the COVID-19 vaccine roll out.

We’ll debunk myths about vaccines, answer your concerns about the jab and tell you when you can get the COVID-19 vaccine.

One of the key questions about the vaccine will be whether your boss can tell you to get the jab.

Legal questions over when bosses will be able to instruct an employee in Australia to take the vaccine is still being thrashed out

Experts say that employers are on the strongest ground when there’s a clear health and safety imperative that a workforce should be vaccinated.

Hall & Wilcox partner and health law leader Alison Choy Flannigan told news.com.au that a pub baron may be on safer legal ground when refusing entry to patrons who are not vaccinated than forcing an existing employee to get the jab.

“The answer is that different rules apply to customers and employees but in some ways, yes it is easier to introduce conditions of entry or conditions of service for customers in a pub than mandate vaccination for employees and that is because of Australian industrial relations laws,’’ she said.

“The central question is whether an employer’s direction to be vaccinated is lawful and reasonable.

“An employer would not be permitted to require an employee to be vaccinated if the employee is allergic to the vaccination as that would be unreasonable.”

Technically, the Morrison Government could make the COVID-19 vaccine mandatory for everyone using public health emergency powers under the Commonwealth Biosecurity Act 2015, and other State and Territory public health legislation.

But the Morrison Government has made it clear it doesn’t plan to do that. The vaccine will be free and voluntary although strongly encouraged.

And while an employer can make a “reasonable instruction” to a worker around health and safety here in Australia, it could be open to legal challenge.

The higher the risk, the stronger are an employer’s arguments for requesting vaccination as a condition of employment.

Aged care workers, hospital workers and frontline hotel quarantine staff including cleaners and security are good examples.

If the states pass laws requiring some workers to be vaccinated for example in hotel quarantine, that will make the rules clearer.

“If the Government passes a public health order or direction, then that will make it easier for employers and service providers,’’ Ms Flannigan said.

“If the Government issues an electronic certificate of vaccination, such as on the NSW Service app, then that will also assist.

“There is precedent with the public health orders concerning vaccination of people attending residential aged care facilities (which applied to both employees and visitors) and there were exceptions to those orders.”

There are fears the vaccine rollout could lead to legal fights between employers and employees.

Attorney-General and Industrial Relations Minister Christian Porter stresses that the fine detail is still being discussed.

“As the Prime Minister has said, it would be expected that most Australians would take up the opportunity to be vaccinated against COVID so that we can all get on with our lives safely,’’ he said.

“Naturally there are a number of complex legal issues that need to be considered in preparation for the rollout of a vaccination, some of which will be unique to particular workplaces and it should be noted that the largest area of legal responsibility for workplace safety is fundamentally a state responsibility.

“Preliminary discussions have already begun with key unions and employers from the health and aged care sectors about a vaccine rollout and wider consultation with stakeholders from the broader economy will begin soon, with the first meeting scheduled for February 1.”

When the Prime Minister was first asked about the issue last year, he said it needed to get to about 95 per cent of the population.

“I would expect it to be as mandatory as you can possibly make it,” the Prime Minister said.

“There are always exemptions for any vaccine on medical grounds but that should be the only basis.

“I mean we’re talking about a pandemic that has destroyed you know, the global economy and taken the lives of hundreds of thousands all around the world.”

But the government was quick to clarify that didn’t mean it will be mandatory for the vast majority of Australians. It will be strongly encouraged, but remain a personal choice.

That doesn’t mean there won’t be some employers that may request vaccination on workplace health and safety grounds – a fact the Prime Minister has again confirmed is a subject of recent discussions.

“All I have said today is that this is a discussion that needs to be had,’’ Mr Morrison said.

“It is voluntary, but that is an important discussion for public health and safety that needs to be had with states and territories.”

However, Mr Morrison has confirmed that the COVID-19 vaccine will not be part of Australia’s “no jab, no pay” welfare rules.

That means you won’t lose welfare payments if your children are not vaccinated. As it stands, there’s no plans to roll out the vaccine to children anyway.