As COVID-19 vaccines become more readily available in Australia, many workplaces are wondering if they can require their staff to have the COVID-19 vaccine. This continues to be an evolving conversation, with new developments on a regular basis.
What are the rights of both employees and employers when it comes to COVID-19 vaccinations?
Although the official advice from the Australian Government continues to evolve, it’s current stance on vaccination remains that it is free and voluntary for all Australians. In saying that, according to the Fair Work Ombudsman, there are circumstances in which COVID-19 vaccinations can be mandated in workplaces and this is largely dictated by three key factors:
- whether a specific law, such as a Public Health Order, requires employees to be vaccinated given the service provided by the workplace;
- whether the direction given by the employer is lawful and reasonable in the circumstances;
- whether there is an enterprise agreement or employment agreement requiring employees to be vaccinated against COVID-19.
Public Health Orders
There has been significant commentary surrounding the potential of Public Health Orders being introduced in a number of states requiring certain workers to be vaccinated. Currently Victoria is mandating vaccination dosages for workers in residential age care facilities. The introduction of the COVID-19 Mandatory Vaccination Directions (No.1) by the Chief Health Officer directs workers who perform, or intend to perform, work in an age care facility must provide evidence by 17 September 2021 that they have:
- been double-dose vaccinated against COVID-19; or
- a partial COVID-19 vaccination and a booking for a second dose by 1 October 2021; or
- a booking to receive their first dose by 1 October 2021; or
- an exemption.
Lawful and reasonable direction
A direction by an employer to an employee requiring them to have the COVID-19 vaccine may be lawful and reasonable depending on the circumstances. The latest guidance from the Fair Work Ombudsman is that there is a four-tier system when determining if it would be lawful and reasonable to mandate a vaccine:
|Tier 1||Employees who are required to interact with people with an increased risk of being infected, such as hotel quarantine or border workers|
|Tier 2||Employees who are required to have close contact with people who are particularly vulnerable to the health impacts of COVID-19, such as aged care or health care workers|
|Tier 3||Employees who are likely to have interaction with other employees, customers or members of the public, such as retail staff providing essential goods|
|Tier 4||Employees who have minimal face-to-face interaction with others, such as those working from home|
The advice from the Fair Work Ombudsman is that 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 infecting a vulnerable person to the health impacts of COVID-19.
To the contrary, an employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of COVID-19.
As to employees performing Tier 3 work, an employer’s direction may only be reasonable where there is community transmission of COVID-19 in the area and the workplace needs to stay open during a lockdown. The direction would likely be unreasonable if there has been no community transmission in the area for quite some time.
It is important to note that the COVID-19 doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus. Employers should make assessments on whether a direction is lawful and reasonable on a case-by-case basis.
Employers should also remain mindful of anti-discrimination laws that may apply to their particular circumstances. Terms of contract and directions made which do not comply with anti-discrimination laws will be deemed unlawful and therefore, unenforceable.
The Fair Work Ombudsman and Safe Work Australia have provided some further guidance on the issue of COVID-19 vaccinations in the workplace. You can read the Fair Work Ombudsman’s latest information here.
What happens if a worker refuses to be vaccinated?
Assuming that an employer can mandate COVID-19 vaccinations for its staff for one of the reasons set out above, they should first seek to understand the reasons behind why the employee is refusing to be vaccinated. The best thing to do is to open it up for discussion as there may be valid reasons for the employee’s refusal, for example it may be due to medical grounds or religious beliefs that preclude them from being vaccinated. In these cases, taking disciplinary action against the employee may be in breach of anti-discrimination laws.
If an employee continues to refuse to be vaccinated in breach of a specific law, Public Health Order or lawful and reasonable direction, and there is no valid reason for that refusal, employers may be able to take disciplinary action up to termination of employment.
Employers need to be cautious in taking disciplinary action against employees where there has been a potential breach of a direction to be vaccinated against COVID-19. The legal situation in constantly evolving and it is always recommended that legal advice is sought before taking any such action.
If you are an employer and need some assistance with employment law, we are here to help. Call one of our employment lawyers today on 03 5434 6666 or 5472 1588.