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UpdatesFeb 09, 2021

Can an employer make COVID-19 vaccinations mandatory?

5 mins read

Employers in certain industries, such as health and aged care and international travel, may direct employees to be vaccinated against COVID-19 if such a direction were both lawful and reasonable. This is already the case in the aged-care industry regarding influenza vaccines.

In particular cases, the direction may not be lawful. It may breach anti-discrimination laws, for example, in the case of a person with a health conditions that results in them being unable to be safely vaccinated.

The Federal Government has indicated it will not make the COVID-19 vaccine mandatory on a universal basis. At this stage, it is not clear whether or not the state governments or particular industry sectors will (or will attempt) to do so.

In respect of the states, it is questionable whether or not a population-wide government mandate would be lawful (in any jurisdiction). It generally appears unlikely. If such a direction were made, it would undoubtedly be challenged in court. It is another question whether or not individual mandates may be made requiring individuals to be vaccinated. For example, in Victoria, the Public Health and Wellbeing Act 2008 allows the Chief Medical Officer to issue a public health order requiring a person to “receive specified prophylaxis, including a specified vaccination”. This power relates to individual cases and can’t form the basis of a population-wide policy.

State governments could potentially take other action, such as refusing to allow unvaccinated persons in state-run facilities (in a similar way to how the ‘No Jab, No Play’ policy is currently implemented, i.e. by withholding benefits/right of participation from those who aren’t fully immunised).

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