COVID-19 Vaccinations and the Workplace

BY 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

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 (https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/other-government-information-assistance/list-of-enforceable-government-directions-during-coronavirus/default).

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

Employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable has to be assessed on a case by case basis.

For a direction to be lawful, it needs to comply with any contract, award or agreement, and any Commonwealth, state or territory law that applies (for example, an anti-discrimination law).

There are a range of factors that may be relevant when determining whether a direction is reasonable, including whether the direction is a reasonably practicable measure to eliminate or minimise risks to work health and safety under work health and safety laws.

On its own, the coronavirus pandemic doesn’t automatically make it reasonable for an employer to direct their employees to be vaccinated against coronavirus. Some circumstances in which a direction may be more likely to be reasonable include where:

• employees interact with people with an elevated risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control), or

• employees have close contact with people who are most vulnerable to the health impacts of coronavirus infection (for example, employees working in health care or aged care).

Work health and safety considerations are an important factor to consider in working out whether a direction is reasonable. Employers and workers can get guidance on specific coronavirus work health and safety issues from Safe Work Australia (https://www.safeworkaustralia.gov.au/covid-19-information-workplaces).

Go to Commonwealth, state or territory workplace health and safety regulators (https://www.fairwork.gov.au/website-information/related-sites#workplace-health-and-safety) to learn what laws apply.

WHAT HAPPENS IF AN EMPLOYEE REFUSES TO BE VACCINATED?

If an employee refuses to be vaccinated (contrary to a specific law, agreement or contract that requires vaccination, or after receiving a clear and repeated lawful and reasonable direction), an employer should, as a first step, ask the employee to explain their reasons for refusing the vaccination.

If the employee has provided a legitimate reason for not being vaccinated (for example, the employee has an existing medical condition), the employee and their employer should consider whether there are any other options available instead of vaccination. For more information on other options, see Alternative working arrangements during coronavirus (https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/alternative-work-arrangements-during-coronavirus).

Whether disciplinary action is reasonable will depend on the circumstances. For more information on disciplinary action for refusing to be vaccinated, see Can an employer take disciplinary action if an employee refuses to get vaccinated? https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/health-and-safety-in-the-workplace-during-coronavirus/covid-19-vaccinations-and-the-workplace#can-an-employer-take-disciplinary-action-if-an-employee-refuses-to-get-vaccinated

Stand downs are unlikely to be an available option for employers if an employee refuses a direction to be vaccinated. Employers can only stand down employees in certain situations. Learn more about standing down employees at Stand downs during coronavirus (https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/stand-down-during-coronavirus).

Employers generally don’t otherwise have the power to suspend employees without pay, unless an enterprise or other registered agreement, award or employment contract allows them to.

We encourage employers to discuss options with their employees depending on the circumstances of their individual workplace. Learn more about consultation and cooperation in the workplace (https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/best-practice-guides/consultation-and-cooperation-in-the-workplace).

CAN AN EMPLOYER REQUIRE AN EMPLOYEE TO PROVIDE EVIDENCE THAT THEY HAVE BEEN VACCINATED?

If an employer has provided a lawful and reasonable direction to be vaccinated for coronavirus and an employee complies, the employer could also ask the employee to provide evidence of their vaccination.

Where an employer wants to direct an employee to provide evidence, the employer should make sure that the requirement to provide evidence is also lawful and reasonable. As stated above, whether a direction would be lawful and reasonable depends on all of the circumstances. If it is unclear whether a direction or the employee’s refusal is reasonable, employers should not take disciplinary action lightly and should seek their own legal advice.

Directing an employee to provide evidence of their vaccination is likely to raise privacy issues. More information about workplace privacy is available at Workplace privacy (https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/best-practice-guides/workplace-privacy) or at the Office of the Australian Information Commissioner’s webpage (https://www.oaic.gov.au/privacy/the-privacy-act).

IF AN EMPLOYEE REFUSES TO BE VACCINATED, CAN AN EMPLOYER REQUIRE EVIDENCE ABOUT WHY THEY’VE REFUSED?

If an employer has provided a lawful and reasonable direction to be vaccinated and an employee refuses, the employer could also ask the employee to provide evidence of the reason for their refusal.

Where an employer wants to direct an employee to provide evidence, the employer should make sure that the requirement to provide evidence is also lawful and reasonable. As stated above, whether a direction would be lawful and reasonable depends on all of the circumstances. If it is unclear whether a direction or the employee’s refusal is reasonable, employers should not take disciplinary action lightly and should seek their own legal advice.

Directing an employee to provide evidence of a medical reason for refusing a vaccination is likely to raise privacy issues. More information about workplace privacy is available at Workplace privacy or at the Office of the Australian Information Commissioner’s webpage.

CAN AN EMPLOYEE REFUSE TO ATTEND THE WORKPLACE BECAUSE A CO-WORKER ISN’T VACCINATED AGAINST CORONAVIRUS?

At present, assuming that there is no public health order preventing attendance, it is unlikely that an employee could refuse to attend their workplace where a co-worker isn’t vaccinated against coronavirus, because:

• vaccination is not mandatory and most workplaces won’t be able to require their employees to be vaccinated

• the co-worker may have a legitimate reason not to be vaccinated (for example, a medical reason).

If an employee refuses to attend the workplace because a co-worker isn’t vaccinated, their employer can direct them to attend the workplace if the direction is lawful and reasonable. As stated above, whether a direction is lawful and reasonable depends on all of the circumstances, including the employer’s work health and safety obligations.

If it is unclear whether a direction or an employee’s refusal is reasonable, employers should consider seeking legal advice before taking disciplinary action.

If an employee has concerns about the safety of the workplace, they should raise their concerns with their employer as soon as possible. Employers should also consider sharing information about any steps they’ve taken to ensure a safe workplace, to help manage employee concerns. Go to:

• Directions to return to work and the workplace for more information on directing employees to perform work

• Protection from discrimination at work for more information on discrimination protections

• Safe Work Australia or the relevant Commonwealth, state or territory work health and safety regulators for more information about work health and safety during coronavirus

• Consultation and cooperation in the workplace and Resolving workplace issues during coronavirus for information and resources about dealing with issues or conflicts in the workplace.

CAN AN EMPLOYER TAKE DISCIPLINARY ACTION IF AN EMPLOYEE REFUSES TO GET VACCINATED?

An employer may be able to take disciplinary action, including termination of employment, against an employee for refusing to be vaccinated if the employee’s refusal is in breach of a specific law or a clear and repeated lawful and reasonable direction requiring vaccination.

Whether an employer can take disciplinary action will depend on the individual facts and circumstances. To work out if and how an employer can take disciplinary action, employers should consider the terms, obligations and rights under any applicable:

• enterprise agreement or other registered agreement

• award

• employment contract

• workplace policy

• public health order.

Employers should also consider getting legal advice in these situations. Before taking any action, an employer should talk to the employee and discuss the employee’s reasons for not wanting to get vaccinated. For example, the employee may have a medical condition that means the vaccine may not be safe for the employee to take. In this instance, the employer should consider if there are other options available to keep the workplace safe instead of vaccination.

Employers don’t otherwise have the power to suspend employees without pay unless an enterprise or other registered agreement, award or employment contract allows them to.

Employees have various protections against being dismissed or treated adversely in their employment. Employers should make sure that they follow a fair process and have a valid reason for termination, or it may breach unfair dismissal or adverse action laws under the Fair Work Act. Find more information about ending employment during coronavirus at Ending employment and redundancy during coronavirus (https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/ending-employment-during-coronavirus).

HOW DOES A VACCINATION REQUIREMENT INTERACT WITH ANTI-DISCRIMINATION LAWS?

It’s important that employers consider their obligations and responsibilities under anti-discrimination laws, which generally prohibit discrimination against employees in the workplace based on protected characteristics. Protected characteristics that are likely to be relevant in considering whether to require vaccination include disability, pregnancy or religious beliefs.

Before requesting or requiring employees to be vaccinated, employers need to consider:

• Commonwealth, state or territory discrimination laws

• general protections provisions under the Fair Work Act.

Find out more about anti-discrimination laws in Australia at the Australian Human Rights Commission (https://humanrights.gov.au/). Get more information on discrimination protections under the Fair Work Act at Protection from discrimination at work (http://protection from discrimination at work/).

CAN AN EMPLOYER REQUIRE A PROSPECTIVE EMPLOYEE TO BE VACCINATED BEFORE STARTING WORK?

In most circumstances, an employer may be able to require a prospective employee to be vaccinated against coronavirus.

Employers should first consider their obligations and responsibilities carefully - for example, under general protections or anti-discrimination laws - before requiring that a prospective employee be vaccinated before commencing employment. Get more information on discrimination protections under the Fair Work Act at Protection from discrimination at work (http://protection from discrimination at work /). Find out more about antidiscrimination laws in Australia at the Australian Human Rights Commission (https://humanrights.gov.au/). These common questions and further information about COVID-19 in the workplace can be obtained by visiting the Fair Work Ombudsman website - COVID-19 vaccinations & the workplace (https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/health-and-safety-in-the-workplace-during-coronavirus/covid-19-vaccinations-and-the-workplace/).

Attribution: ‘©Fair Work Ombudsman www.fairwork.gov.au‘

Information on the Fair Work Ombudsman website is licenced under a Creative Commons Attribution 3.0 Australia Licence (https://creativecommons.org/licenses/by/3.0/au/legalcode)