Employers could be able to require staff to get a COVID-19 vaccination if they can establish doing so is a reasonable and lawful direction, says a Border lawyer.
Harris Lieberman director David Koschitzke spoke to employers at an Albury Business Connect meeting on Tuesday about COVID-19 vaccines and the workplace.
Mr Koschitzke said one of an employer's primary obligations was managing risks to look after employees and customers.
He said employers could require staff to be vaccinated against COVID-19 if a public health order was issued or if the decision proved to be a tailored and "reasonable and lawful direction".
"Queensland has a public health order in respect to certain employees in certain health-related areas, but there are currently none in Victoria and none in NSW, that's not to say that won't happen in the future," he said.
"Otherwise you have to be able to establish that it is a reasonable and lawful direction - that the only way to discharge your duty is to require vaccination."
Mr Koschitzke said making vaccination a condition of employment for new staff would likely prove easier than imposing the requirement on existing employees.
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He said employers should undertake a risk assessment to establish whether it was reasonable and lawful to require existing staff have the COVID vaccine.
The assessment should examine the likelihood of infection, what work is being undertaken and whether staff work with vulnerable people, whether there is anything about the workplace which makes COVID spread more likely and what control measures are available ie masks or distancing.
"Looking through all those steps, it may be that a combination of some of those other measures might be sufficient so you don't need to mandate vaccination," he said.
"But it might be that you work in [a field] where vaccination is the only secure way you can ensure your workers and customers are kept safe."
Recently the Fair Work Commission ruled in favour of Goodstart Early Learning after they dismissed a worker who refused to get the flu vaccination, against company policy, and could not provide evidence of a medical exemption.
Mr Koschitzke said the ruling could provide a "fair template" of what businesses could expect from the COVID vaccination situation.
Mr Koschitzke said in that case the company had a health and safety obligation to the children in its care.
Further, the government recommends childcare workers be vaccinated, he said, and there were no control measures to put in place as young children cannot be vaccinated, close contact cannot be avoided and masks were not practical for children.
Employees can refuse to be vaccinated if the vaccine hasn't been approved for them yet or on medical grounds, however Mr Koschitzke said it was not yet clear whether staff would be able to decline on religious or political grounds.
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