Can employers mandate medical interventions?

IN Solutions-Legal

Peter Fam, Human Rights Lawyer, Sydney, explains reasons why employers who aren’t subject to a public health order should think three times before mandating vaccination for their employees.

A few weeks ago I wrote a detailed article explaining the reasons why employers who aren’t subject to a public health order should think twice (or maybe three times) before mandating vaccination for their employees. The intention was to get it in front of as many employers as possible in the hope of changing their minds, to get it in front of as many lawyers as possible in the hope they’d investigate and take on some of these arguments, and to get it in front of employees to help them gain an idea of where they stand.

Although several employers have contacted me letting me know that the article has changed their minds and approach to the situation, LinkedIn has still done a pretty good job of artificially limiting the article’s reach. Obviously, many employers are still mandating the jab in each state (though the article is mostly relevant to NSW).

Here is a Word Document version of the article, in case you have networks you can share it with. If we can get this in front of more eyes, it might balance the debate a bit. I believe that most employers in NSW are still misinterpreting the law in this area.

Peter Fam, Human Rights Lawyer, Sydney

Should they?

Disclaimer – this article does not contain legal advice. It contains the personal opinion of the writer only. It features general information only and is not tailored to any individual or employer’s circumstances. It should not be relied on by any individual or employer. Contrary opinions, as always, are very welcome.

The role of the employer vis-à-vis the employee is a complex one. Employees spend much of their lives working with and for employers, and employers are subject to extensive and complex duties which they must carefully administer for the sake of their employees.

Never before, however, have employers been encouraged to implement public health policy. Employers, usually beholden to Work Health and Safety laws, contracts and enterprise agreements, are being asked to consider how to fit mandatory medical procedures into this legal framework, when it’s not clear whether it fits neatly into it, if at all, and when employers themselves do not have the knowledge or expertise to answer employee questions or concerns about the medical procedures that they are directing their staff to undergo.

Over the past few months, a wave of employers in Australia have taken the plunge in directing their employees to receive Covid-19 vaccinations. If employees don’t follow this direction, they are often stood down indefinitely, or terminated. Advice about whether or not this is lawful is generally approached through the lens of whether such a direction is “lawful and reasonable”. This is a test which is assessed on a case by case basis, with reference to the common law.

The purpose of this article is to ask two questions.

First, is there more to it than that?

Second, what are the future implications of employers facilitating and accepting such a drastic shift in their role in our society?

Specifically, this article will examine:

  1. The popular approach to the issue of mandatory vaccination at work;
  2. Is it that simple? whether the law actually authorises employers to mandate medical procedures;
  3. What does the Common Law say?
  4. What questions will the Federal Court likely need to answer?;
  5. The cases so far, and why the matter isn’t settled; and
  6. Implications for the future.

1. The popular approach to the issue of mandatory vaccination at work

2. Is it that simple? Does the law actually authorise employers to mandate medical interventions?

3. What does the common law say?

4. What questions will the Federal Court need to answer?

5. The cases so far, and why the matter isn’t settled

6. Implications for the future

What we have here is the strange situation where, by jumping into the “no jab no job” sandpit, employers have potentially expanded their obligations under WHS laws considerably beyond what that statute initially intended.

Of course, apart from attempting to comply with their statutory duties, the intention of employers in mandating vaccination is an attempt to keep their staff and employees safe.

With that said, employers should know that by taking this course in the absence of Government health direction to the same effect, they are wading into very grey legal waters, and more pertinently, they are facilitating a responsibility and assumption that they will continue to play the role of health enforcer to their employees in the future. This should be taken into account by employers when considering which measures to implement as the Covid-19 situation evolves and changes, as it already has and will continue to do.

Peter Fam is a human rights consultant and advocate at Maat’s Method Pty Ltd. You can follow Peter at t.me/thepeterfamtelegram for more general content.

If you or your business is interested in professional consultation, contact peter@maatsmethod.com.au.

Can employers mandate medical interventions_.docx

(Alternatively download from Mega, browse to the “LEGAL RIGHTS” folder)

Solutions – Legal:

Penny... on Health
Penny... on Health

DISCLAIMER: The information on this website is not medical science or medical advice. I do not have any medical training aside from my own research and interest in this area. The information I publish is not intended to diagnose, treat, cure or prevent any disease, disorder, pain, injury, deformity, or physical or mental condition. I just report my own results, understanding & research.