March has seen the kick-off to Australia’s phased COVID-19 vaccination program which has brought up the question of ‘Can we require our employees to be vaccinated against COVID-19?’
The Fair Work Ombudsman and SafeWork Australia have now released guidance on vaccinating employees.
What is the answer?
The simple answer is that in the current circumstances an employer cannot require their employees to be vaccinated against COVID-19 unless a specific set of circumstances exists. Currently there are no laws or public health orders in Australia that give employers the right to mandate that their employees are vaccinated.
In a similar fashion, employers who are worried about their health and safety obligations can breathe a sigh of relief, as there is no requirement for employers to ensure employees are vaccinated against COVID-19 to meet their OHS obligations.
What are the specific circumstances – where employers can compel employees to be vaccinated?
There are a limited set of circumstances where an employer may require their employees to be vaccinated. The FWO confirms that each situation will be dependent on its own set of circumstances, however the relevant factors to be considered include:
- whether a specific law (such as a state or territory public health law) requires an employee to be vaccinated;
- whether an enterprise agreement or employment contract includes a provision about requiring vaccinations;
- if neither of the above apply – whether it would be lawful and reasonable for an employer to give employees a direction to be vaccinated.
When is it lawful and reasonable to require employees to be vaccinated?
Employers may direct employees to be vaccinated against Covid-19 where:
- employees interact with people with an elevated risk of being infected with coronavirus (for example, employees working in hotel quarantine); 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).
What happens if an employee refuses to be vaccinated?
It may be possible for employees to refuse to be vaccinated for legitimate reasons, such as health reasons or medical conditions. It is important for employers to not contravene anti-discrimination laws by imposing a requirement on employees to be vaccinated.
If an employee does not have a legitimate reason to refuse being vaccinated, then the employee may be subject to disciplinary action, which may include warnings, suspension or termination of employment.
What about prospective employees?
In most circumstances employers will be able to require new employees to be vaccinated against COVID19, provided the employer is not breaching anti-discrimination laws or general protections obligations.
We recommend employers seek legal advice, prior to requiring employees to be vaccinated or subjecting employees to disciplinary action for refusing to be vaccinated.