Can my Employer Force me to Get a COVID Vaccination?

Not surprisingly, the question of whether your employer can force you to get a COVID vaccination is coming up regularly these days.

As you’d expect, it’s not OK for your employer to strap you to a chair and push needles into your arm against your will.

So what people are really asking here is this:

If my employer introduces mandatory vaccinations, can they fire me if I refuse to get one?

The answer is… it depends.

In this article, we’ll work through the general principles around the circumstances in which your employer can or can’t terminate your employment for refusing the COVID vaccine. For this article, we won’t deal with religious objections or medical exemptions, as we’ll cover those elsewhere.

Understanding the Employment Relationship

Before we dive in, it’s probably a good idea to take a look at the nature of employment generally.

One way of describing that relationship, although its a term that people don’t like much these days, is a “master/servant” relationship.

That kind of descriptive language should help at least point us towards the idea that employers can lawfully give their employees specific directions to do things or not do something. If the employee does not follow that direction, they can be disciplined or terminated (provided correct processes are followed).

So, for example, everybody generally agrees and expects that your employer can tell you:

1. When you need to arrive for work and when you can leave;
2. How long you can take for breaks;
3. That you may not be drunk or take drugs at your workplace;
4. That certain types of behaviour (e.g. abusing clients or colleagues) will not be tolerated.

Our starting point, then, is that employers do have a general ability to direct you in certain ways connected with your employment. The major legal decision on this topic puts it this way:

‘Naturally enough the award adopted the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant. If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable.

In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.’

But There are Limits…

Despite this fairly broad power, there are limits.

Generally, those limits are when:

1. The direction has nothing to do with your employment; or
2. The direction is unlawful or unreasonable.

So your employer probably cannot tell you what colour pillow-case to use, that you may buy only Black & Gold oats for your breakfast at home, or that you must cut off one leg in order to keep working for them.

These limitations restrict employers from taking things too far as part of an understanding that employment is not a relationship of total subservience.

While this is the general standing principle, in the world of employment and COVID vaccinations there are a few additional factors to consider.

Legal Areas for Employers to Make you Get a COVID Vaccination

There are three main legal avenues we need to consider to determine if your employer can make you get vaccinated:

1. Whether your State has introduced laws which require them to do so (and yes, we appreciate that there is the question of whether a Government mandate properly constitutes a ‘law’);
2. Whether there is some kind of agreement, such as in your employment contract, Award or Enterprise Agreement that permits them to do so; or
3. Whether the direction is lawful and reasonable, drawing on the test above.

Let’s look at each in turn.

State Legislation Requiring Vaccination

If the State passes a law requiring your employer to have all their employers vaccinated, then that’s essentially the end of the discussion.

Your employer is compelled to follow the law.

In Queensland, for example, as it stands (at 10 December), the intention is that:

1. Healthcare workers must have 2 COVID vaccinations from 15/12/21
2. Education, corrections and airport workers must have 1 COVID vaccination by 17/12/21 and 2 COVID vaccinations from 23/1/22

That being the case, if you are employed in a setting to which one of these laws applies, then you will not be permitted by law to work in that setting unless you are vaccinated in accordance with the directions.There are some very limited exceptions to this rule, such as where a worker in healthcare is unable to be vaccinated due to a medical contraindication, which we will deal with in a separate article.

Previous Agreements Permitting the Direction

Many employees in Queensland and throughout Australia work under an Award, an Enterprise Agreement or some other form of registered agreement.

If you are covered by such an Award or Agreement and it contains clauses that permit your employer to introduce a vaccination requirement, then you have already agreed at the time of your employment to the potential for a direction to occur. This is one of the reasons why it is so important to properly review your employment contract and applicable Award/Enterprise Agreement before accepting a new position of employment.

Most Awards and registered agreements will require your employer to consult with its employees before making a direction to vaccinate. A failure to properly consult with you may open up the door for an employee to argue that the direction is not lawful or reasonable.

However, if you have already agreed to the direction in writing, then your employer can likely introduce a mandatory vaccination policy for COVID-19.

Lawful and Reasonable Direction

This part is the “it depends” section.

As we’ve spelled out above, employees must generally obey directions that are within the scope of their contract of service and are “reasonable”.

Which begs the question… what constitutes a “reasonable” direction?

What is reasonable or unreasonable when it comes to policies or directions to vaccinate in the workplace will involve an analysis of all the circumstances. And while we’d like to tell you that there is a set of checkboxes or rules to follow, we’ll have to keep this fairly general. The relevant factors are going to be things like:

1. The availability of the vaccine in your area;
2. What, if any, local government or State health directives or orders are in place;
3. The nature of your employer’s business (for example, whether they are public facing and work regularly with customers or involve larger numbers of people or working with more vulnerable populations that might increase risk);
4. Your specific role in the workplace – an employee whose job is 100% remote from their home will have a different set of considerations than an employee who serves the public face-to-face all day; and
5. Any other elements or facts relevant to the balancing of risk versus the imposition on your general liberties.

Fair Work suggests that employers could usefully categorise types of work into 4 different “tiers”, being (from highest risk to lowest):

1. Tier 1 – employees who are required to interact with people with an increased risk of infection;
2. Tier 2 – employees who have close contact with vulnerable populations;
3. Tier 3 – employees who interact with each other or customers but not necessarily those who are particularly vulnerable;
4. Tier 4 – minimal face to face interaction with others.

As a general guide using these definitions, if you are a tier 1 or 2 employee, arguing that a direction or policy to vaccinate against COVID is unreasonable will be challenging (putting aside medical exemptions for the moment). It’s not impossible, but it will involve an up hill battle of sorts.

So Can your Employer Make you Get the COVID Vaccination?

There are a number of circumstances where it is more likely an employer will be able to lawfully implement a policy requiring its employees to get the COVID vaccination.

However that does not mean that all employers can, as a matter of course, require their employees to get vaccinated. Absent a specific law requiring it or a pre-existing agreement where you have accepted the possibility of such a direction, every individual employee’s situation needs to be assessed before landing on an answer to the question.

If you want advice on your specific circumstances, Rubix legal is offering a special, fixed fee package for employers wanting to understand their rights in relation to workplace vaccination requirements and mandates. Click here for more information.