COVID-19 – Vaccination and the workplace

Vaccination is a big issue. Particularly the question of whether a workplace can mandate that an employee get vaccinated. We’ve put together the information below to help you understand your rights & obligations in relation to this issue.

Note the COVID-19 situation is fluid and things are changing quickly and often. This information is current at 19 August 2021. Also note this is general information only and you should get legal advice about your specific circumstances. 

Can an employer require an employee to be vaccinated?

There are three situations where an employer can require an employee to be vaccinated.

1.       There is a specific law that requires the employee to be vaccinated

At present, the NSW Government has issued orders that certain people are not allowed to go to work unless they have been vaccinated, or at least had the first dose of a vaccine. This may change to require full vaccination in due course. There is also an exception to the requirement in the public health order for people that have a medical reason not to be vaccinated, but this needs to be certified by a doctor and the Chief Health Officer.

The NSW Public Health Order applies to:

  • Quarantine workers
  • Airport workers
  • Transportation workers
  • Construction workers who live in declared areas

Every State and Territory has different laws and orders about who has to be vaccinated and the requirements are changing regularly.

2.       The requirement is permitted by an enterprise agreement or employment contract

It may be that the enterprise agreement or employment contract includes provisions relating to vaccination. Employers and employees should check these documents to see if there are any such terms. Even if there is a term about vaccination, employers and employees should check that the term is consistent with anti-discrimination laws. Terms that breach anti-discrimination laws will not be enforceable.

Employers might want to put provisions about vaccinations in new employment contracts. Before doing so, the employer should consider the same question of whether the provisions breach anti-discrimination laws. They should also consider other potential risks of mandating vaccination.

We strongly recommend employers and employees get advice before relying on contract or enterprise agreement terms in relation to vaccine requirements.

3.       Lawful and reasonable direction

An employer is permitted to give a direction that their employee gets vaccinated if the direction is lawful and reasonable. This begs the question: what is lawful and reasonable? This question depends on the circumstances of each individual case. A direction will not be lawful if it contravenes an employment contract, award or agreement or any Commonwealth, State or Territory law that applies – like anti-discrimination laws

There are a range of issues that might be considered when deciding if a direction is reasonable, for example:

  • The type of workplace: are employees in public facing roles, is distancing possible, are employees in contact with vulnerable persons
  • How much community transmission is in the area that the workplace is located
  • The employee’s circumstances: their specific role at work and their medical circumstances

There has not yet been a Fair Work Commission decision that sets out what factors will mean that a direction to et vaccinated is reasonable. Food processor SPC Ardmona has mandated vaccination for workers and so has Qantas. So there may be a helpful decision on this issue in the near future.

In the meantime, according to the Fair Work Ombudsman, it can be helpful to divide work situations into 4 tiers:

  • Tier 1 work – employees are required to interact with people with an increased risk of being infected with COVID-19 (eg, employees working in hotel quarantine or border control)
  • Tier 2 work – employees are required to have close contact with people who are particularly vulnerable to the health impacts of COVID-19 (eg, employees working in health care or aged care)
  • Tier 3 work – there is interaction between employees and other people such as customers or the public in the normal course of work (eg, shops providing essential goods and services).
  • Tier 4 work – employees have minimal face-to-face interaction (eg, they are working from home)

An employer’s direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected, or giving COVID-19 to a person who is particularly vulnerable to health impacts.

(See https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations#vaccination-requirement-anti-discrimination-laws)

So what do you do if you are an employer?

Regardless of your personal opinions and attitudes about vaccination, it is important for all employers to get their own advice on this issue. Every employer’s circumstances are different. Further, every employer has an obligation to provide a safe workplace, so it might not be that doing nothing is a reasonable option. At a minimum employers should be taking precautions to prevent the spread of COVID-19 in the workplace and ensuring that all employees follow applicable Public Health Orders including rules about wearing masks and social distancing. [DW3]

Many employers have adopted the attitude that they will encourage employees to be vaccinated and make it easy for employees to do this. Other employers are going one step further and offering incentives or organising voluntary vaccination for employees. Taking these further steps could present further risks for employers: incentives and employer organised vaccinations provide a link to employment. If an employee has an adverse reaction to a vaccine, it may be considered a compensable workers compensation issue.

Final word

The COVID-19 situation is new, it is fluid and there is much uncertainty. For many employers there is a fine line to tread between ensuring the safety of workers and staying within the law. There is no easy answer and when there is an answer, it may change quickly.