COVID-19 Vaccines – Critical Questions for your Workplace

COVID-19 Vaccines – Critical Questions for your Workplace

Guidance for the vaccine roll out in Australian workplaces was released by the Federal Government on 19 February 2021.  This took place via a media release from Christian Porter, Minister for Industrial Relations and updated guidance for employers and employees on the websites of the Fair Work Ombudsman (FWO) and Safe Work Australia (SWA)

Whilst the Government aims to have as many Australians as possible choose to be vaccinated, receiving a vaccination will be voluntary (with some exceptions).

1.  Can I require my employees to be vaccinated?

SWA has confirmed that there are currently no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against COVID-19.

State and Territory health agencies may make public health orders that require some workers to be vaccinated, if they are working in high risk workplaces.  If a public health order is made that covers your workplace, then it must be followed (subject to an employee having valid reasons to refuse the vaccination).

The FWO has commented that the overwhelming majority of employers should assume that they will not be able to require their employees to be vaccinated against Coronavirus.

Circumstances in which an employer can make the vaccine mandatory

Even where there is no State or Territory public health order mandating the vaccine in your workplace, there may be other limited circumstances where an employer may require employees to be vaccinated.  This must take into account health and safety issues in the particular workplace as well as each employee’s individual circumstances.

A health and safety risk assessment may justify making the vaccine mandatory in a particular workplace.  The workplace will need to be a high-risk COVID-19 environment (eg. health care or meat processing). We recommend that legal advice be obtained before a decision is made on this.

In addition, there may be relevant clauses in an enterprise agreement or employment contract that assist in allowing the vaccine to be mandated.  Generally however, such clauses will not be wide enough to cover COVID-19.

Where the health and safety drivers provide sufficient justification, then employers can direct employees to have the vaccination, because such a direction would be lawful and reasonable (subject to considering the individual circumstances of employees who raise concerns). The pandemic itself does not automatically make it reasonable for such a direction to be given.

Can an employee refuse a lawful direction to be vaccinated?

Yes, if they have a legitimate reason for doing so.

Whether a reason is legitimate may be open to debate.

The employee may for example have a medical condition which reasonably justifies refusal to take the vaccination.  This brings into play the interaction between a vaccination requirement and anti-discrimination laws.  A disability discrimination claim could result from requiring an employee to undergo a vaccination, if they have a medical condition which, based on appropriate medical advice, justifies refusal of the vaccination.

Similar discrimination law issues apply in relation to pregnancy and religious beliefs.  The Royal Australian College of Obstetricians and Gynaecologists recommended on 22 February 2021 that pregnant women not automatically take the vaccine. It commented that, although the available data does not indicate any safety concern or harm to pregnancy, there is insufficient evidence to recommend routine use of COVID-19 vaccines during pregnancy. If an employee raises an objection to taking the vaccine based on genuine lawfully-held religious beliefs, then that is something employers need not take into consideration.

If an employee refuses to be vaccinated, can I require evidence about why they have refused?

Yes, provided that the employer has a lawful and reasonable basis on which to make the direction in the first place.

Requiring evidence of a medical reason for refusing a vaccination may raise privacy issues.  Hence, in some situations, an employer may not be able to require details of the medical condition or the reasons why the condition means that taking the vaccine would be unwise.  Requiring a medical certificate as a minimum would generally be reasonable.

Can I discipline an employee for refusing to have a vaccination?

Yes, taking disciplinary action, up to and including the termination of employment, may be reasonable.  However, the initial direction to take the vaccination must be lawful and reasonable and the employee’s individual circumstances must not reasonably justify its refusal.

Legal advice should be obtained before proceeding down the disciplinary path.

Can I require an employee to provide evidence that they have had the vaccination?

Yes, this can be done provided that the initial direction to take the vaccination is lawful and reasonable in the particular workplace concerned.

The requirement to provide evidence must also be lawful and reasonable.  Legal advice should again be sought on this issue.

2.  Can an employee refuse to attend work because another employee is not vaccinated?

No.  There are extremely limited circumstances under which an employee would be justified in refusing to attend work.

Under all State, Territory and Commonwealth health and safety laws, an employee can only cease or refuse to carry out work if they have a reasonable concern that to carry out the work would expose them to a serious risk to their health or safety from an immediate or imminent exposure to a hazard.  It will not be possible to demonstrate this in most circumstances with COVID-19.

In addition to this, there is little evidence about how effective COVID-19 vaccines are in limiting the transmission of COVID-19 (as opposed to limiting the severity of COVID-19 on those who become infected with it).

3.  Can I require customers/clients and visitors to my workplace to prove they have been vaccinated before entering?

SWA expresses the view that workplace health and safety laws are unlikely to justify proof of vaccination requests for customers/visitors. It adds that whilst employers might still want to require this as a condition of entry to the premises, legal advice should be sought, owing to potential privacy and discrimination issues.

4.  How do I protect my unvaccinated employees from COVID-19?

All reasonably practicable control measures should still continue to be implemented in the workplace.  For employees who are particularly susceptible owing to certain medical conditions (e.g. a highly compromised immune system), then alternative working arrangements should be explored.

Otherwise, the general Covid-safe requirements that should be in place for the whole workplace (discussed below) should be continued.

5.  How do I comply with health and safety duties for COVID-19 in my workplace?

Encouraging employees to have vaccinations is only one COVID-19 control measure.

To minimise the risks, employers should continue to pursue risk control strategies that should have previously been implemented in the workplace since the outbreak of the pandemic.  SWA states that this includes to:

  • Undertake a risk assessment for the business;
  • Consider any relevant available control measures;
  • Consult with workers and health and safety representatives about COVID-19 and relevant control measures;
  • Determine what control measures are reasonably practicable to implement.

Current control measures previously recommended by our Regulators include physical distancing; good hygiene; regular cleaning and maintenance; ensuring employees do not attend work if they are unwell; and complying with any public health orders.

If you would like to discuss your particular circumstances and how the vaccine rollout may affect your workplace and employees, contact our Employment Law team.