By Bianca Mazzarella

29 January 2021

When Prime Minister, Scott Morrison told 3AW radio station that the COVID-19 vaccine would be “as mandatory as you can make it” it left many wondering whether or not the government has the power to make the vaccine mandatory and if not, whether employers can make the vaccine mandatory for employees in the workplace.

This question is topical given recent discussions around the roll out of the Pfizer COVID-19 vaccine in Australia and the absence of Australian court rulings on the subject, given its unprecedented nature.

What power does the government have to implement a mandatory vaccine?

The Australian state and federal governments have the legal power to make the vaccine mandatory provided the vaccine is safe and approved, however, even if such emergency powers were passed in Parliament they would still be subject to exemptions and exceptions under the Therapeutic Goods Act (Cth) 1987.

How likely is it that the COVID-19 vaccine will be made mandatory by the Australian government?

The Australian government has already stated that the vaccine will not be made mandatory. In August 2020, Scott Morrison said “we can’t hold someone down and make them take it”.

Can an employer direct its employees to take the COVID-19 vaccine?

It may be lawful and reasonable for an employer to give its employees a direction to take the vaccine if they work with vulnerable persons (i.e aged care, hospitals and education sector). Employers in such sectors should have up to date workplace policies that detail expectations around preventing severe diseases and protecting the vulnerable in the workplace.

What if an employee refuses to take the vaccine?

Refusal to take the vaccine may result in an employer having no alternative but to stand an employee down if it is not practicable for the employee to work from home. However, this is a highly sensitive and unprecedented area and employers should obtain legal advice prior to making any decision which adversely effects an employee’s employment status.

You should contact a member of our Team if you would like advice in relation to when it is lawful and reasonable to request that employees receive the COVID-19 vaccine, what exemptions apply and whether or not it is lawful to take disciplinary action.

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