Is this legal for an employer to mandate their employees to be vaccinated before returning to work?


In the coming months this question and others like it will be asked by both employees and employers as businesses emerge from lockdown.


The ‘no jab, no work’ issues is fast becoming a highly debated topic and a legal question for both lawyers and the general public.


It is not the first time ‘no jab no something’ has been proposed and implemented. We have seen restrictions on ‘no jab’ in the childcare industries effecting whether parents are eligible for Centrelink childcare benefits if they choose not to vaccinate their children. And some childcare centers refuse to admit unvaccinated children into their centre.


Nevertheless, it is the first time ‘no jab, no work’ has been proposed and commenced to be implemented. 


So, can employers legally ask their employers to get vaccinated, before returning to work?


Can employers legally dismiss an employee because they refuse or are not vaccinated?


These questions I imagine will be the source of some legal arguments in employment law in the very near future. For now, though it appears there are some common law rights in favor of the employer.   


As all employers have a Duty of Care to their employees and have a Duty to provide a Safe System of Work


Both these common law duties means that an employer must ensure a safe system of work for all their staff whether they are full time, part time or casual, and both these duties are the paramount obligation of the employer.

They consist of duties and responsibilities such as: -

  • The duty to take reasonable care to safeguard their employees from reasonably foreseeable risks of harm.

Reasonably foreseeable risk of harm may be the virus spreading in the workplace and endangering other staff members, customers, and visitors to the business.

  • Have competent staff, adequate materials, proper system of work and effective supervision.
  • Ensure premises and equipment are maintained in a safe condition. 
  • Not delegable meaning an employer cannot pass these duties to another company or person it is the employer’s responsibility.
  • Ensure staff are not bullied or harassed at work and act when it does occur.

These duties also exist even when an employer has safe work policies in place but knows that other employees are either not following or the employer is seen to be tolerating or necessitated the unsafe work practices.

Moreover, an employee has a duty to follow lawful and reasonable instructions from their employer. Given that governments are pushing the scheme it may be considered a lawful and reasonable instruction.

Nevertheless, stay tuned for more updates on this issue as the law progresses and is challenged since employees also have rights meaning they cannot be forced, bullied, harassed, treated differently, discriminated against etc…..

For more on the duties and responsibility of an employer see our website link below




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