Vaccination for COVID-19 in the Workplace

Oct 19, 2021

Imagine this scenario: You are a worker with a medical condition that makes you more susceptible than others, to the risk of an adverse reaction to the COVID-19 vaccine. Your employer issues a direction to all staff that they are to become fully vaccinated by a certain date, and if not, they will be dismissed.

Is this a “lawful and reasonable direction”?
This will depend on the circumstances including the availability of vaccination, condition under which relevant work is performed, whether the work can be done remotely, likelihood of contact with co-workers or customers, and the risks of both infection and transmission if the worker is unvaccinated. When community transmission is relatively rare, it may be hard for any employer to justify such a stance. It will also depend on whether the employer is following government mandated legislative requirements peculiar to this particular industry.

If you refuse to have the vaccine and you are dismissed, do you have a valid claim for “Unfair Dismissal”?
This becomes an issue of whether the dismissal was harsh, unfair or unreasonable. Termination may be considered unfair depending on the manner it is handled by the employer. In the absence of this, there have been 2 recent cases where the employer has successfully defended the claim for unfair dismissal, in the aged care and childcare sectors. In both cases the Fair Work Commission warned that this does not create a precedent as the context and circumstances will always require a close analysis of each case.

If there is a refusal to hire a new employee or some other disciplinary action / dismissal is taken against an existing employee, can this be challenged on the ground that it involves “unlawful discrimination”?
Again, it will depend on the circumstances but if the person has a disability which makes them more susceptible to adverse reaction to the vaccine, there may be a valid claim for discrimination on the basis of disability.

Although not yet the subject of any court decisions, there may be circumstances where an employer may be liable in negligence for failure to direct that all staff be vaccinated. Circumstances may include when an unvaccinated infected worker, while working, causes transmission to another co-worker who contracts COVID-19 as a result.

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