The Fair Work Ombudsman has recently updated their advice and material around COVID-19 vaccinations and the workplace. Unfortunately, this is a continuously changing area, and we recommend members continue to monitor our communications for updates.
Set out below are some of the common questions and the current answers:
Can an employer require an employee to be vaccinated?
In the current circumstances, the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus.
While the Australian Government’s policy is that receiving a vaccination is voluntary, it aims to have as many Australians vaccinated as possible.
There are 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 workplace and each employee’s circumstances. Relevant factors an employer should consider 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).
Further considerations may include whether employees have a legitimate reason for not being vaccinated (for example, a medical reason), and how protections for employees under anti-discrimination laws may apply.
State and territory governments may make public health orders requiring the vaccination of workers (for example, in identified high-risk workplaces or industries) in their state or territory. Employers and workers need to comply with any public health orders that apply to them.
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 contract or an agreement term 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.
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.
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.
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.
Before requiring that a prospective employee be vaccinated before starting employment, employers should consider their obligations and responsibilities carefully, for example, under general protections or anti-discrimination laws.
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.
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. This could include alternative work arrangements. Whether disciplinary action is reasonable will depend on the circumstances.
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
- employment contract
- workplace policy
- public health order.
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.
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.
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. Whether a direction would be lawful and reasonable depends on all of the circumstances.
Can an employee refuse to attend the workplace because a co-worker isn’t vaccinated against coronavirus?
Generally, it’s unlikely that an employee could refuse to attend their workplace where a co-worker isn’t vaccinated against coronavirus, including because:
- vaccination isn’t mandatory for most employees 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. Whether a direction is lawful and reasonable depends on all the circumstances, including the employer’s work health and safety obligations.
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.
The MTA will continue to update members on the impact of COVID-19 vaccinations in the workplace.