On 19 February 2021, the federal Industrial Relations Minister, announced the release of new guidance material for employers regarding the COVID-19 vaccine rollout.
“The latest guidance provided by the FWO and SWA reinforces the Federal Government’s broader vaccine policy that vaccination should be voluntary”, the Attorney-General and Minister for Industrial Relations, said.
According to the Guidance Materials, most employers will not be able to require their employees to receive vaccination against COVID-19.
Employers considering mandating employee vaccination should seek legal advice due to potential risks, including discrimination and privacy concerns.
The following common questions and answers have been provided by the Fair Work Ombudsman.
Can an employer require an employee to have a vaccination?
Most employers currently cannot mandate employee vaccination against coronavirus.
Currently, in Australia, there are no laws or public health orders enabling employers to mandate employee vaccination against coronavirus. The Australian Government encourages voluntary vaccination, striving for widespread coverage.
There are, however, limited circumstances where an employer may require their employees to have a vaccination. Whether employers can mandate employee vaccination against coronavirus depends on specific workplace and individual circumstances.
Relevant factors an employer should consider will include:
• Whether a specific law (such as a state or territory public health law) requires an employee to hava vaccination.
• 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).
• Other factors to consider are valid exemptions, such as medical reasons, and the application of anti-discrimination protections for employees.
Employers should obtain their own legal advice if:
• They are considering making coronavirus vaccinations mandatory in their workplace, or
• They operate in a coronavirus high-risk environment (for example, health care or meat processing).
What happens if an employee refuses to received vaccination?
If an employee refuses to have vaccination (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 a good reason for not getting the shot (like having a health issue), the employee and their boss should think about if there are other choices instead of receiving vaccination. For example, they could try a different way of working.
Stand downs are unlikely to be an available option for employers if an employee refuses a direction to be vaccinated. Employers can only stand down employees in certain situations.
Owners can only suspend employees without pay if an agreement or contract permits it.
Bosses are encouraged to discuss options with their employees depending on the circumstances of their individual workplace.
Can an employer require an employee to provide evidence that they have received vaccination?
If an employer has provided a lawful and reasonable direction to have a injection 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. 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.
Directing an employee to provide evidence of their vaccination is likely to raise privacy issues.
If an employee refuses to have vaccination, can an employer require evidence about why they’ve refused?
If an employer issues a lawful vaccination directive and an employee refuses, the employer can request evidence for the refusal. An employer must ensure that directing an employee to provide evidence is both lawful and reasonable. 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.
Can an employer take disciplinary action if an employee refuses to receive vaccination?
Employers should also consider getting legal advice in these situations.
Prior to any action, the employer should discuss the employee’s vaccination concerns, including potential medical contraindications. In this instance, the employer should consider if there are other options available to keep the office safe instead of vaccination.
Employers can only suspend employees without pay if an agreement or contract permits it.
Employees have various protections against being dismissed or treated adversely in their employment. Employers should make sure that they follow a fair process and have a valid reason for termination, or it may breach unfair dismissal or adverse action laws under the Fair Work Act.
How does a vaccination requirement interact with anti-discrimination laws?
It’s important that employers consider their rights and responsibilities under anti-discrimination laws, which generally prohibit discrimination against employees in the workplace based on protected characteristics. Protected traits that are likely to be related in considering whether to require vaccination include disability, pregnancy or religious beliefs.
Before asking or demanding employees to have vaccination, employers need to consider:
• Commonwealth, state or territory discrimination laws
• General protections provisions under the Fair Work Act.
Can a worker say no to going to work if a co-worker didn’t get the coronavirus shot?
Right now, unless there’s a rule saying you can’t go, it’s probably not okay for an employee to say no to going to work just because a co-worker didn’t get the coronavirus shot. Here’s why:
• Vaccination is not mandatory and most workplaces won’t be able to require their employee to have vaccination.
• The co-worker may have a valid reason to not take a vaccination (for example, a medical reason).
• If an employee doesn’t want to come to work because a co-worker didn’t get a shot, their boss can tell them to come if it’s fair and makes sense. Whether it’s fair and makes sense depends on different things, like the boss making sure the workplace is safe.
If it is unclear whether a direction or an employee’s refusal is reasonable, employers should consider seeking legal advice before taking disciplinary action.
Employees with safety concerns should promptly inform their employer. Employers should also communicate the measures taken to ensure a safe workplace to address these concerns.
Before starting work, can an employer demand that a prospective employee receive a vaccination?
In most circumstances, an employer may be able to require a prospective employee to have vaccination against coronavirus.
Employers need to think about their duties and what they have to do. For instance, before telling a new worker to get a shot, they have to follow rules about fairness and not treating people unfairly.
CLICK HERE to view Safe Work Australia’s industry specific guide material on COVID-19 vaccines. CLICK HERE to view the Attorney-General for Australia and Minister for Industrial Relations announcement.
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