The COVID-19 pandemic has had an unprecedent impact on employment and workplace conditions generally. Now that COVID-19 vaccinations are becoming more readily available, there is an increase in employers seeking to implement mandatory vaccination policies.
Below we have answered some of the frequently asked questions about vaccine requirements in the workplace.
CAN I MAKE COVID-19 VACCINATIONS MANDATORY FOR MY EMPLOYEES?
Whether an employer is able to require their employees to get the COVID-19 vaccine depends on the particular circumstances of employment and needs to be assessed on a case by case basis.
It is important to note that each employer has a duty to ensure, so far as reasonably practicable, the health and safety of its workers and any other persons who enter their premises (such as clients, customers and suppliers). Therefore, it is necessary for an employer to conduct a risk assessment for COVID-19 in the workplace and to consider all possible measures, including vaccination, available to reduce the risk of COVID being contracted or transmitted in the workplace.
An employer may direct an employee to be vaccinated where:
- a specific law requires you to be vaccinated (such as a State or Territory public health order for a particular industry);
- an enterprise agreement, award or employment contract provides that it is permitted; and/or
- any such direction from an employer is lawful and reasonable.
An employee may be able to refuse an employer’s direction to get vaccinated against COVID-19 in certain circumstances such as an inability to be vaccinated due to medical reasons. However, depending on the reason for refusal, such action could result in an employer taking disciplinary action against the respective employee, which may include termination of employment or redeployment.
WHAT DOES “REASONABLY PRACTICABLE” MEAN?
‘Reasonably practicable’, in relation to a duty to ensure health and safety, means that which is reasonably able to be done to ensure employees’ health and safety.
Whether it is ‘reasonably practicable’ for an employer to direct an employee to receive the COVID-19 vaccine will require an employer to take into account and weigh up all the relevant matters, including:
- the likelihood of employees contracting and/or transmitting COVID-19 in the workplace;
- the degree of harm that might result from such employees contracting and/or transmitting COVID-19;
- the potential to eliminate or minimise the risk of contracting or transmitting COVID-19 in the workplace (such as implementing social distancing and other control measures); and
- the costs associated with the methods of eliminating or minimising the risk of contracting and transmitting COVID-19 in the workplace, including whether the cost is disproportionate to the risk.
WHAT IS A LAWFUL AND REASONABLE DIRECTION?
An employee is obligated to follow all directions from their employer that are lawful and reasonable. A failure to follow a reasonable and lawful direction may amount to serious misconduct which could lead to termination of employment.
A direction to be vaccinated will be ‘lawful’ provided the direction complies with any employment contract, industrial instrument (such as an award or enterprise agreement), and any Commonwealth, State or Territory law (for example the Fair Work Act 2009 (Cth) and anti-discrimination laws).
Whether the direction from an employer to be vaccinated against COVID-19 is reasonable will depend on the individual circumstances, including the terms of any public health orders in place, the nature of the work being performed, the extent to which employees are working in close contact with other people and the risk of COVID-19 being transmitted in the location the direction is given.
A direction to be vaccinated may be reasonable where:
- employees are required as part of their duties to interact with people with an increased risk of being infected with COVID-19 (such as employees working in hotel quarantine or border control);
- employees are required to have close contact with people who are particularly vulnerable to the health impacts of COVID-19 (such as employees working in health care or aged care);
- employees interact with other persons (such as customers, other employees or the public in the normal course of employment) and there is community transmission of COVID-19 occurring in an area that your workplace is open to provide essential goods and services; and/or
- a state or territory has made a public health order requiring workers to be vaccinated against COVID-19 in their state or territory (such as, employees working in residential aged care facilities who were required to receive their first dose of the vaccine by 17 September 2021).
A direction to be vaccinated may be less likely to be reasonable where:
- employees have minimal face-to-face interaction as part of their normal employment duties (such as employees working from home); and/or
- no community transmission of COVID-19 has occurred for some time in the area where your workplace is located.
WHEN CAN AN EMPLOYEE REFUSE TO FOLLOW A DIRECTION TO BE VACCINATED?
An employee may be able refuse to follow a direction from an employer to get the COVID-19 vaccine if they have a valid medical reason for not receiving the vaccine due to a risk that it could pose to their health and safety such that a medical exemption has been obtained. Services Australia provides a list of valid medical reasons that count as a medical exemptions.
An employee may also be able to refuse to follow a direction to get vaccinated if the employer’s direction is inconsistent with anti-discrimination laws, which protect employees from being discriminated against because of their race, religion, sex or disability.
If an employee’s reason for not getting vaccinated is because of an attribute that is protected under the anti-discrimination laws, such as disability, then a direction from an employer to get vaccinated against COVID-19 is a discriminatory reason. In such circumstances, an employer should make reasonable adjustments to accommodate the employee to continue to perform their job.
It is, however, lawful for an employer to discriminate on the grounds of what could be a discriminatory reason if:
- the condition or requirement to be vaccinated is shown to be ‘reasonable’ in the circumstances;
- an employee is unable to carry out the ‘inherent requirements’ of your job;
- the making of adjustments in the workplace would impose an ‘unjustifiable hardship’ on the employer; and/or
- the disability is an infectious disease, which could arguably also include an infectious disease that may exist in the future, and such discrimination is ‘reasonably necessary’ to protect public health.
In determining whether it is reasonable for an employer to mandate COVID-19 vaccinations in the workplace, the Court may consider the public health orders in place at the time, the nature of an employee’s disability and/or medical condition, the nature of the work performed and whether the employee would have close contact with vulnerable people.
CAN AN EMPLOYER REQUIRE MEDICAL EVIDENCE IF AN EMPLOYEE REFUSES?
An employer may request that an employee provide evidence supporting any refusal to follow a direction to be vaccinated against COVID-19. However, the collection of any reasons for refusing to be vaccinated and/or medical evidence must be ‘reasonably necessary’ as it is considered to be sensitive information under the Privacy Act 1988 (Cth).
Depending on the circumstances, it may be reasonably necessary for an employer to collect such information to consider all of the available evidence before them in order to consider what action is to be taken regarding the employee’s continuing employment, if any, due to a refusal to be vaccinated.
If an employee does not provide any evidence to support their refusal to be vaccinated, an employer may take disciplinary action for failing to follow the direction (provided it is lawful and reasonable).
CAN AN EMPLOYER ASK AN EMPLOYEE ABOUT THEIR VACCINATION STATUS?
Employers can collect information about an employee’s vaccination status where the employee consents and the collection is reasonably necessary to perform the workplaces’ functions and activities. It is important to note that an employer must be able to demonstrate clear and justifiable reasons for collecting employee vaccination status information (such as aiding with a work health and safety risk assessment).
An employer can collect vaccination status information without an employee’s consent only in circumstances where the collection is required or authorised by law (including a state or territory public health order or direction).
Once obtained, this information should be handled carefully as it is considered to be sensitive information under the Privacy Act 1988 (Cth).
CAN AN EMPLOYEE REFUSE TO BE VACCINATED WITHOUT A MEDICAL EXEMPTION OR AN ATTRIBUTE PROTECTED UNDER ANTI-DISCRIMINATION LAWS?
If an employee refuses to follow a reasonable and lawful direction to be vaccinated and they do not have a good reason to do so, an employer may take disciplinary which could include termination of employment. The failure to follow a reasonable and lawful direction is considered to be serious misconduct and is a valid reason for dismissal.
WHAT IF AN EMPLOYEE WANTS TO WAIT TO GET VACCINATED?
If an employer has made a lawful and reasonable direction for employees to be vaccinated and an employee does not comply with that direction within the required timeframe, the employer may take disciplinary action (including termination of employment) for failure to follow a reasonable and lawful direction.
If you have concerns about the reasonableness or lawfulness of directing mandatory vaccinations, then please contact our Workplace Team.