AHA|SA MEMBER INFORMATION
COVID-19 Vaccinations and the Workplace OWEN WEBB, AHA|SA WORKPLACE RELATIONS MANAGER
With the commencement of the first of the vaccines being administered to individuals in Australia, one of the topical discussion points across the community at present is what impact the COVID-19 vaccinations have on employers and employees in the workplace. The Fair Work Ombudsman have now published on their website some comprehensive commentary to a number of common questions about the coronavirus vaccinations and the workplace and we have detailed those questions below.
CAN AN EMPLOYER REQUIRE AN EMPLOYEE TO BE VACCINATED? In the current circumstances, the overwhelming majority of employers should assume that they won’t be able to require their employees to be vaccinated against coronavirus. There are currently no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against coronavirus. The Australian Government’s policy is that receiving a vaccination is voluntary, although it aims to have as many Australians vaccinated as possible. There are, however, limited circumstances where an employer may require their employees to be vaccinated. Whether an employer can require their employees to be vaccinated against coronavirus is highly fact dependent, taking account of the particular workplace and each employee’s individual circumstances.
Relevant factors an employer should consider will include: • whether a specific law (such as a state or territory public health law) requires an employee to be vaccinated • whether an enterprise agreement, other registered agreement or employment contract includes a provision about requiring vaccinations • if no law, agreement or employment contract applies that requires vaccination, whether it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated (which is assessed on a case by case basis). Additional considerations may include whether employees have a legitimate reason for not being vaccinated (for example, a medical reason), and how protections for employees under antidiscrimination laws may apply. We have included more information on these issues below. Employers should obtain their own legal advice if: • they are considering making coronavirus vaccinations mandatory in their workplace, or • they operate in a coronavirus high-risk environment (for example, health care or meat processing). Legislation and public health orders requiring vaccination against coronavirus
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As referred to above, state and territory governments may make public health orders requiring the vaccination of workers (for example, in identified highrisk workplaces or industries) in their state or territory. If public health orders are made, employers and workers will need to comply with any orders that apply to them. No public health orders requiring coronavirus vaccination have been made at the time of publication. Our information will be updated if any orders are made. For further information on public health orders, see list of enforceable government directions during coronavirus . Agreements or contracts relating to vaccinations Some contracts or agreements may contain terms relating to vaccinations or coronavirus vaccinations specifically. Employers and employees should check to see if the term applies to coronavirus vaccinations (for example, a term relating only to flu vaccinations won’t apply). Even where a term of a contract or an agreement applies to coronavirus, employers and employees will need to consider whether the term complies with anti-discrimination laws. A term that is contrary to anti-discrimination laws will not be enforceable. If in doubt, employers and employees should consider obtaining legal advice to assess these issues. Lawful and reasonable directions Back to Contents
