Can an employer force you to get a flu shot?

When implementing measures and policies to protect the health and wellbeing of employees as they return to the workplace, employers may consider requiring their employees to have a flu shot.  But can an employer lawfully force an employee to get a flu shot?

As we head into the flu season, with the COVID-19 pandemic still a reality, there is an increased push for Australians to get vaccinated against influenza.[1] In certain circumstances, it will almost certainly be lawful for an employer to require an employee to get a flu shot.  This includes the following situations.

1.Where the employee is required by law to have a flu shot. 

There are currently restrictions on persons entering residential aged care facilities.[2]  In Victoria, the Deputy Chief Health Officer has made a Direction which requires any person attending a residential aged care facility to have an up to date vaccination against influenza.[3] 

Therefore, if you are an employee either of:

• a residential aged care facility; or

• with duties requiring you to attend such facilities,

then, your employer can lawfully require you to have the necessary vaccination.

2. Where it is a condition of employment.

If it is a term of your contract of employment that you have an up to date vaccination against influenza, the employer can require you to be vaccinated. 

It may be more common in certain industries and professions to make vaccination a condition of employment, such as in: [4]

• health services sector;

• residential aged care; and

• child care.

If an employer wishes to make vaccination against influenza a condition of employment (for which noncompliance amounts to dismissible conduct), the term in the contract should clearly justify/explain the purpose behind the requirement. 

3. Is requiring an employee to get a flu shot, a lawful and reasonable direction?

Where it is not a condition of employment, or required by law, it is less clear whether the employer can make you get the flu shot. 

Is the direction, lawful?

Employers can give lawful and reasonable directions to their employees, and employees are under a duty to obey such directions.[5]  A failure to obey such a direction may amount to misconduct, which can be grounds for termination.

It is clearly lawful for an employer to make a policy requiring employees get vaccinated against influenza.  Whether such a policy is reasonable:

• requires further investigation on a case-by-case basis; and

• will largely depend on the particular job in question.

Is the direction, reasonable?

It may be reasonable for an employer to require its employees to get a flu shot if an employer deems it necessary to: [6] 

• comply with its obligations in relation to providing a safe working environment; and

• to protect the health and wellbeing of employees.

This is especially the case in the current COVID-19 pandemic, as employees who contract both influenza and COVID-19 are at an increased risk of:

• serious illness; or

• fatality. 

For the same reason, it may also be reasonable for employers to direct employees to get a flu shot, if the employer owes a duty of care to protect the health and wellbeing of others (such as patients and clients). 

However, if an employee is at a low risk of contracting influenza and/or COVID-19, and is unlikely to come into contact with other persons to whom the employer owes a duty of care, it may not be reasonable to give a direction to get a flu shot. 

An obvious example would be if an employee is:

• working from home; and
• not come into contact with any other employees or customers of the employer. 

4. Can I refuse the direction because of personal beliefs or religion?   

If vaccinations are not required by law, then employers must be mindful of the implications a flu shot policy may have in relation to discrimination.

If an employer makes a policy requiring employees to get a flu shot, for which noncompliance leads to dismissal, the policy could amount to unlawful discrimination.  This will be the case if the employees who are disadvantaged by the policy, are those who cannot be vaccinated because of their religious beliefs.  This is referred to as indirect discrimination.[7]

Though, not all forms of discrimination are unlawful. 

Again, consider the above example. If an employer can demonstrate that the policy is reasonable (e.g. to protect the health and wellbeing of employees and patients), then the indirect discrimination will not be unlawful. 

Furthermore, holding a particular belief or opinion (which does not amount to a religious belief), such as anti-vaccination, is not a protected attribute and any policy which disadvantages persons with such a belief or opinion will not amount to unlawful discrimination.

5. Advice to Employers and Employees

Therefore, if you are an employer and considering implementing a policy for influenza vaccination, we suggest you first seek legal advice from one of our qualified practitioners to get advice on how best to implement such a policy.

If you are an employee who is refusing to get vaccinated, and your employment has been impacted by your refusal, we likewise suggest you contact us to discuss your options.

How can DSA Law help?

If you have any questions or issues in relation to employment, please Contact Us or one of our Employment Lawyers at DSA Law on (03) 8595 9580 and let us assist you.

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[1] Greg Hunt, Record 16.5 million flu vaccines to protect Australian (19 April 2020) Department of Health <https://www.health.gov.au/ministers/the-hon-greg-hunt-mp/media/record-165-million-flu-vaccines-to-protect-australians>.

[2] Department of Health, FAQs – Restriction on entry into and visitors to aged care facilities (1 April 2020) Department of Health <https://www.health.gov.au/sites/default/files/documents/2020/04/coronavirus-covid-19-restrictions-on-entry-into-and-visitors-to-aged-care-facilities_1.pdf>.

[3] Annaliese van Diemen, Care Facilities Directions (No 4) (31 May 2020) Department of Health and Human Services <https://www.dhhs.vic.gov.au/sites/default/files/documents/202005/direction-care-facilities-no-3-signed-2020-05-11.pdf>

[4] Department of Health, Immunisation for work (1 May 2019) Department of Health  <https://www.health.gov.au/health-topics/immunisation/immunisation-throughout-life/immunisation-for-work>.

[5] Darling Island Stevedoring & Lighterage Co (1938) 60 CLR 601.

[6] Occupational Health and Safety Act 2004 (Vic) s 21.

[7] Equal Opportunity Act 2010 (Vic) s 9.