Co Vid Vax Vex

Australia has committed to a national COVID vaccination program – described as the largest peacetime operation in Australia.

Australia’s federal industrial relations minister Christian Porter has reportedly told employers the government will not mandate vaccines in workplaces.

That means making the legality of workplace vaccination policies more “black-and-white” will need to come from the state and territory governments, using their regulatory powers under their work health and safety acts. In other words, the federal Government won’t make it mandatory for any person to have the vaccination, but it will be legal for each State and Territory to make its own laws on the subject.

It is entirely foreseeable that State governments will legislate to permit businesses to say: “No jab = no job.”

Alan Joyce – CEO of QANTAS – has been quoted as saying that he believed it would be a necessity for passengers to be vaccinated once a vaccine is available, and that QANTAS will require passengers to be vaccinated against COVID-19 before they will be allowed to travel on an international flight. He said the company was looking into the possibility of requiring passengers to have a vaccination passport which would allow them to travel.

Big questions remain for employers and employees, however given the devastating effect of further outbreaks upon entire industries and businesses, it is in my view very likely that most businesses will mandate vaccinations for their employees.

It is more difficult to predict what might happen regarding customers and clients of businesses.  If a baker is not permitted to refuse to bake a cake for a same-sex couple unless on genuine religious grounds, then I am not sure if a business would be permitted to refuse to serve a customer who chooses not to be vaccinated. It also raises the question of how would anyone prove they have been vaccinated?  On the other hand, aged care facilities have already been restricting visitors unless they have proof of having a current fluvax.

Employers have a clear incentive to want employees vaccinated, to protect clients and co-workers as well as to avoid legal liabilities of potential workplace COVID transmissions.

But can an employer insist on vaccination as a condition of employment?

It may well be that an Australian employer can make a vaccination an inherent requirement of employment, and dismiss a worker for refusing – even if they have a legitimate reason. But it depends on the role and exposure risks.

If risks to others can be minimised through social distancing and other measures – say, for instance an employee works from home – then dismissing an employee for refusing to get vaccinated could be ruled unfair. Particularly if they have a good reason – that is a medical condition, not a pseudo-legal objection. It depends on the balance of the employer’s duty of care to others against the employee’s claims.

It is still a murky area, legally speaking.

I do not know the answers. I don’t think anyone does yet. We shall have to see what happens.

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