The COVID-19 Vaccine – Employer/Employee Rights and Obligations
- Employers currently cannot expressly require employees to receive the COVID-19 vaccine.
- An employee must follow an employer’s ‘lawful and reasonable’ directions.
- Mandating a ‘vaccination’ may be lawful and reasonable depending on the scope of employment, nature of services provide and occupation health and safety legislation.
The impact of the COVID-19 pandemic on the Australian way of life has been immensurable. Of particular concern, the alteration of the ‘traditional’ workplace environment raises key concerns amongst employers and employees alike. With the current rollout of the COVID-19 vaccine across Australia, one concern appears most prevalent: can employers mandate that employees receive the COVID-19 Vaccine?
Can an Employer mandate the COVID-19 vaccine?
The short answer: not at this stage.
An employer’s current ability to mandate the COVID-19 vaccine for its employee’s has not been expressly confirmed by court, tribunal or public health order. In fact, the COVID-19 vaccine at this stage is voluntary. Whether an employer could lawfully mandate the COVID-19 vaccine in any given circumstance is a multifaceted issue, firstly requiring an understanding of the inherent nature of the employer-employee relationship.
The High Court has illustrated that the degree of control, although not determinative, remains a key element of the employer-employee relationship. The common law position on control is, by extension, an implied term in every contract of employment: the very nature of the relationship necessitates a degree of control exercised by the employer over the employee.
In Australia, the dynamic of this relationship is represented by the employee’s duty to follow all employer’s ‘lawful and reasonable directions’. The question therefore arises: is an employer’s direction to an employee to receive the COVID-19 vaccine ‘lawful and reasonable’?
COVID-19 vaccine: a ‘lawful and reasonable’ direction?
The failure of an employee to follow an employer’s lawful and reasonable direction can (and often will) constitute a valid reason for dismissal.
A direction will be lawful to the extent that it falls ‘within the scope of employment’ and involves no illegality. The courts have assessed that ‘within the scope of employment’ is
“determined by the nature of the work the employee is engaged to do … it does not extend (unless in exceptional circumstances) to private or personal activities of the employee not affecting his or her work”.
Therefore, an employer’s direction to an employee to receive the vaccine may be a lawful direction, that is one within the scope of their employment, if the nature of the employee’s work necessitates that the vaccine is required. This stance is reflected by Australian Guidelines requiring staff of residential care facilities to receive the annual influenza vaccination. However, for employees working outside the realm of health care, it seems unlikely that mandating the COVID-19 vaccine will be lawful.
Whether a direction is reasonable is a question of fact and balance of the circumstances. This will include, amongst other considerations, the express or implied terms of the contract and the nature of employment. With regard to COVID-19 employer-employee duties, the case of Kieran Knight v One Key Resources  provides useful insight.
In this case, the employer requested for an employee to provide travel information for the purpose of assessing ‘risk of COVID-19 exposure in the workplace’. Such request was found to be both lawful and reasonable in that it enabled the employer to ensure a safe work environment as mandated by the Work Health and Safety Act 2011 (QLD). These cases illustrate that what is ‘reasonable’ in the circumstance may be assessed subject to legislation governing workplace activity.
However, there is no certainty that the reasoning from Kieran Knight v One Key Resources could extend to an employer’s direction for an employee to receive the COVID-19 vaccine. After all, a vaccine is a far more invasive direction than the proviso of information. As outlined recently in the yet to be determined case of Glover v Ozcare , an employee’s right to refuse a vaccine will likely turn on a consideration of whether the vaccine can reasonably and lawfully be considered an ‘inherent requirement of the job’.
The decision to be reached in Glover v Ozcare will no doubt shed light on the issue: can an employer mandate the COVID-19 vaccine? However, perhaps an understated issue will nevertheless remain: the conflict between one’s inalienable right of self-determination (in choosing whether or not to receive a vaccine) and one’s duty to follow lawful and reasonable directions to ensure a safe work environment. Some guidance can perhaps be gleaned from the above-mentioned cases: it depends on the context of each specific case, taking into account the particular workplace and each employee’s individual circumstances.
We cannot be sure whether pandemics or even epidemics will become commonplace in the future. However, the ability of viral contagions like COVID-19 to severely affect Australia’s economy is unquestioned. There is therefore a clear need for guidelines (at the state or federal level) to be set in order to govern employer-employee relationship under the context of pandemics, like COVID-19. Until such guidelines are drafted, employers and employees should keep a close eye on how cases like Glover v Ozcare pan out – such decisions will likely influence their future duties.
If you have any questions in relation to employment law matters, please do not hesitate to contact the team at Miller Sockhill Lawyers.
 Steven v Brodribb Sawmilling Pty Ltd (1986) 160 CLR 16.
 Lambeth v University of Western Sydney  AIRC 47(Hamberger SDP, 16 January 2009), .
 Grant v BHP Coal Pty Ltd  FCA 1374.
 King v Catholic Education Office Diocese of Parramatta  FWCFB 2194, .
 Australian Government, COVID-19 Infection Prevention and Control for Residential Care Facilities (11 September 2020) 2.
 Construction, Forestry, Mining and Energy Union v Glenore Mt Own Pty Ltd  FWC 7752, .
 Kieran Knight v One Key Resources (Mining) Pty Ltd T/A One Key Resources  FWC 3324.
 Kieran Knight v One Key Resources (Mining) Pty Ltd T/A One Key Resources  FWC 3324, .
 Ms Maria Corazon Glover v Ozcare  FWC 231.
 Ms Maria Corazon Glover v Ozcare  FWC 231, .