The absence of government orders mandating COVID-19 vaccinations does not prevent employers from implementing a mandatory workplace vaccination policy where this is critical to staff safely performing their roles, according to a senior WHS and employment lawyer.
To introduce such a policy, an employer "needs to be able to demonstrate that vaccination of employees is an important control measure to protect staff, clients and members of the public who interact with the workplace from the risk of COVID-19 infection", Swaab partner Michael Byrnes says in a report.
"This would, of course, largely depend on the nature of the employer's business or undertaking and the inherent duties of the employees who would be subject to the mandatory vaccination direction," Byrnes says.
"The critical question in relation to those employees: can they perform the inherent duties of their position safely without being vaccinated against COVID-19?" he says.
Byrnes says that with the current clusters, and deep concerns about relatively low vaccination rates in high-risk industries like aged care, the issue of mandatory workplace vaccinations has moved from "being an interesting theoretical consideration to a matter of immediate practical concern".
The National Cabinet recently agreed to mandate COVID vaccines for the residential aged care workforce and workers in several other sectors, but employers in other industries are "not totally dependent" on the position adopted by the Federal Government, he says.
Mandating vaccinations is "an option that will be open to some employers, particularly in industries such as aged care and healthcare. Employers need not (and should not), in effect, outsource the decision to government," he adds.
Byrnes points to the recent judgment in Barber v Goodstart Early Learning  FWC 2156, where the Fair Work Commission upheld the dismissal of a childcare worker who refused to comply with a direction to get the flu jab, and failed to establish her claim that she couldn't because of a medical condition.
FWC Deputy President Nicholas Lake found her employer Goodstart's flu vaccination policy was reasonable because: Goodstart operated in a highly regulated environment with unique challenges where alternative safety controls were less effective or impractical; quality care and the safety of children are of paramount importance in the sector; Goodstart covered the associated costs; and the policy allowed for medical exemptions.
Byrnes says that while the Deputy President was at pains to caution against using his ruling as a guide to workplace COVID policies, it is "with respect to his Honour... very likely that similar general principles will apply, albeit to a different set of circumstances, in the context of COVID-19 vaccinations".
Employers, Byrnes stresses, must consider "whether there are any extenuating circumstances that would make a mandatory vaccine direction unreasonable and therefore unlawful in respect of a particular employee".
"There may be some employees who have a medical condition that prevents them from receiving a particular type of COVID-19 vaccine or a COVID-19 vaccination generally," he says.
His report also examines work-related issues around the controversial AstraZeneca vaccine, and industries where a vaccine policy is not a critical imperative.
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