COVID-19 Vaccinations

There is a strong indication that State governments, with the Federal Government likely to follow, will require vaccinations in order to engage in certain higher-risk activities.

Private businesses are likely to follow a similar model, requiring evidence of vaccination before allowing customers to enter premises or engage in activities, such as attendance at cinemas, theatres or other high risk or crowded locations.

A number of private companies have also stepped up and mandated vaccinations for either all employees, or those at the highest risk (such as those in front-line customer service). The unions, while notionally supportive of the vaccination program, have expressed a great deal of caution and concern over mandating vaccinations in workplaces, and in particular

the idea that employees may be dismissed or refused work for failing or refusing to be vaccinated, even if they may hold a medical exemption.

This concept of a valid medical exemption will be important, as taking disciplinary action, including dismissal or refusing to provide work, could be discriminatory under various state and federal anti-discrimination legislation, or in breach of general protections under the Fair Work Act 2009.

In the current circumstances, the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus. Employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable needs to be assessed on a case-by-case basis.

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. Even if no direction has been given, the FWO has expressed the view that employers may request details of vaccination.

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. Whether a direction is lawful and reasonable depends on all the circumstances, including the employer’s work health and safety obligations.