Workplace Policies – To vaccinate or not to vaccinate

As the Australian Federal Government’s COVID-19 vaccines start rolling out you may be asking whether the vaccine is mandatory, or whether your employer can force you to take the vaccine in order to keep your job.

Queensland Health states on its website that:

“the COVID-19 vaccine is not mandatory and individuals will maintain the option to choose not to vaccinate. However, policies around staff vaccination are the responsibility of individual employers. Makes sure you check with your workplace about their policies and expectations. A worker who chooses not to be vaccinated may be redeployed by their employer if they face a risk of exposure to COVID-19 cases.”

Workplace Policies

Whether an employer can enforce a workplace policy, including a direction to vaccinate, is determined by the construction of such a policy, its incorporation into an employment contract, and whether it is lawful to enforce.

There are two common approaches adopted by employers when implementing workplace policies:

• Expressly binding policies on employees and employers by stating that they are incorporated into the employment contract; or
• Not expressly incorporating policies into the employment contract, however they constitute a lawful direction to the employee without imposing a binding or contractual obligation on the employer.

Enforceability under the latter approach differs greatly contingent on the employment contract and specific circumstances. The Courts apply an objective test by considering the language used, context and what a reasonable person is led to believe from the construction of the policy and employment contract. By way of example:

• Riverwood International Pty Ltd v McCormick (2000) 48 AILR 4-304 – employee successfully argued that his employer must pay him a termination package in accordance with the redundancy policy, despite the employment contract not imposing an expressed obligation upon the employer to comply with the policy.
• Commonwealth Bank of Australia v Barker (2013) 214 FCR 450 – the policy expressly stated that it was not incorporated into the employment contract and thus a breach thereof was not considered a breach of the contractual obligations, despite the employer expecting the employee to follow the policy.

What if I am unable to comply with a policy for personal reasons?

It is unlawful to discriminate in the workplace by taking adverse action against an employee because of their race, colour, sex, sexual orientation, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Adverse action is defined under the Fair Work Act 2009 (Cth) as an action whereby the employer:

• Dismissed the employee;
• Injures the employee in his/her employment;
• Alters the position of the employee to the employee’s prejudice; or
• Discriminates between the employee and other employees of the employer.

However, treating an employee differently is not necessarily unlawful discrimination. If you are unable to comply with policy which makes it mandatory to be vaccinated for any of the aforementioned reasons (e.g. religious grounds or medical conditions), your employer may not take adverse action against you, however they may take reasonable action necessary to protect the health and safety of people in the workplace or the general public, or for any other lawful reason as prescribed by State/Territory legislation or Government directives. This is particularly relevant for employers and employees operating in industries which directly provide services to the public (e.g. doctors, nurses, teachers and law enforcement).

If you’re an employer who is thinking of implementing mandatory workplace policies, or an employee who is uncertain as to their rights with respect to workplace policies, please contact our team.