Mandatory COVID-19 Vaccination Policies in Employment – snapshot of the Tasmanian Context
In Tasmania, employees who provide health and medical services or work in health and medical facilities, and most State Service employees, are subject to Public Health Directions requiring vaccination against COVID-19. Where a Public Health Direction applies, an employer can rely upon the Direction to require mandatory COVID-19 vaccination of employees covered by the Direction, unless the employee has a valid medical exemption.
However, in Tasmania there is no broad Public Health Direction mandating vaccination in the workplace. This means that employers have the task of assessing the risk in a workplace and determining if a COVID-19 vaccination policy is appropriate.
An increasing number of employers are moving to introduce mandatory COVID-19 vaccination policies. However, there will continue to be legal challenges, including the risk of unfair dismissal claims, anti-discrimination actions and privacy complaints.
In implementing any such policy, an employer will need to have undertaken a robust risk assessment and conducted a proper consultation process.
On 3 December 2021 the Fair Work Commission Full Bench found that the introduction of a mandatory COVID-19 vaccination policy in the form of a Site Access Requirement was not a lawful and reasonable direction to employees due to a failure to properly consult with employees.
However, a recent recommendation from the Fair Work Commission has indicated that an identical Site Access Requirement, once it had gone through proper consultation, would be lawful and reasonable.
The evolving nature of the COVID-19 virus, government Public Health Directions and legal cases examining employer decisions in unique contexts, means that this area of law requires careful navigation.
Obtaining legal advice specific to your circumstances will help you proceed with confidence. Please contact our Employment and Workplace Relations team if you would like any assistance in this regard.
We are happy to assist employers and employees to understand this rapidly evolving area of law.
For more information please email Rebecca Crawford or call: 03 6338 2390.
This article is not intended to be legal advice and is not attempting to cover all information points relevant to the subject of mandatory vaccination policies in the workplace. No reliance should be placed on this article and obtaining specific legal advice for your circumstances is strongly encouraged.