Can I be forced to get the COVID-19 Vaccine by my employer or the law?

The Pfizer vaccine has arrived in Australia and is in full swing of being administered, with a second vaccine not far behind for those in Phase 2. While the first groups to have the vaccination include those in the top tier priority groups; being people in aged care facilities and quarantine workers, other groups of lesser priority will be on the list for the end of October.

If you’re in the latter group, it means you’re in a more low-risk category which has posed some interesting questions by many citizens about what is voluntary and what is mandatory and the law. It’s a debate about balancing the community’s rights versus those of the individual in a public health emergency and how the law should be used to ensure the efficacy of a COVID-19 vaccine.

Back in August 2020, Prime Minister Scott Morrison stumbled when he said a COVID-19 vaccine would be “as mandatory as you could possibly make it”. Although Morrison backtracked on using the word “mandatory” and was much clearer when he said instead, “the government is aiming for a 95% vaccination rate in Australia.”

Since August, we’ve come a long way, and so has the Vaccine itself and people’s opinions. There appears to be strong community support for the Vaccine, especially after watching others on the other side of the world get it first.

What are the legal limits for people getting vaccinated?

  • Can the Government mandate vaccinations?
  • Can workplaces require that workers take the vaccination as a condition of employment?
  • Can airlines require an immunisation certificate to permit people to travel?
  • Should people claim a non-medical exemption, such as a conscientious objection to vaccines or on religious grounds?

Can the Government mandate vaccinations?

The answer is no. Legally in Australia, a person cannot be subject to medical treatment without consent. However, there are exceptions to this under state and territory public health laws. It can be argued in some instances that a vaccination is not a medical treatment, but that depends on which state or territory you live in.

Can workplaces and businesses require vaccines?

Employers have a duty under the model Work Health and Safety (WHS) laws to eliminate, or if that is not reasonably practicable, minimise the risk of exposure to COVID-19 in the workplace.

The Government aims to have as many Australians vaccinated as possible; however, receiving a vaccination is voluntary. There is a difference between a government-mandated vaccination and private law matters for some occupations. For example, in some states, like the ACT, this is an ACT Health act where they have an “occupational assessment, screening and vaccination procedure” for staff working in close contact with infected patients or infectious materials.

Can airlines require an immunisation certificate to permit people to travel?

Yes. It’s not new to have vaccinations recorded for travel purposes. A yellow card called International Certificate of Vaccination or Prophylaxis (ICVP), has been around for decades. This yellow card currently holds proof of vaccinations for yellow fever, cholera, rabies and more. Each country, by its law, has unique rules on international arrivals and COVID-19.

Currently, many countries require travellers to present a negative COVID-19 test before boarding, including Australia, New Zealand, the USA, the UK and many more. It’s likely more countries will follow.

News in travel suggests that the experts are considering a new electronic version of a vaccine passport, which will allow for international travel and be incorporated into large public and private events like concerts, festivals, and sports events.

Should people claim a non-medical exemption, such as a conscientious objection to vaccines or on religious grounds?

Challenges could be made to any compulsory COVID-19 vaccination policy under the human rights charters in Victoria, Queensland and the ACT, aiming to protect rights such as freedom of expression, thought, conscience, religion and belief.

Here, much will depend on who is requiring the vaccination (a public body or private business) and whether there are punitive measures in place for non-compliance for example, the use of fines or imprisonment.

There is no recognised right to conscientious objection to vaccinations under Australian law. Therefore, any person who is unwilling to be vaccinated cannot merely argue an “objection” to it.

For more information about your legal rights on vaccinations, work rights, human rights or health rights in Australia, call us for a consultation.

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