The majority of Australian employers will not be able to require employees to receive the COVID-19 vaccine, following updated guidance on vaccinations in the workplace provided by the Fair Work Ombudsman (FWO) and Safe Work Australia (SWA).
Requiring an Employee to be Vaccinated
The FWO guidance provides that the “overwhelming majority of employers” should assume that they will not be able to require their employees to be vaccinated against COVID-19. The guidance does outline certain limited instances in which an employer may require an employee to be vaccinated. These limited circumstances will be dependent on the facts of the relationship, including:
- 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). Additional 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.
Employers can direct their employees to be vaccinated provided the direction is lawful and reasonable. However, the FWO guidance states that, on its own, the coronavirus pandemic does not make it reasonable for an employer to direct their employees to be vaccinated against COVID-19. Instead, whether a direction is lawful and reasonable has to be assessed on a case by case basis. Work health and safety (WHS) considerations are an important factor to consider in working out whether a direction is reasonable. Industry-specific COVID-19 WHS guidance has been provided by SWA on issues regarding vaccinations (SWA guidance). Although employers generally have a duty under model WHS laws to minimise, so far as is reasonably practicable, the risk of exposure to COVID-19 in the workplace, the SWA guidance provides that it is “unlikely” that a requirement for workers to be vaccinated will be reasonably practicable without more.
Evidence of Vaccination
The FWO guidance also makes clear there is not automatic right to require evidence of vaccination. Instead, this depends on whether the initial direction to receive the vaccine and the direction to provide evidence are lawful and reasonable. If it is unclear whether a direction is lawful and reasonable, employers should obtain legal advice before taking disciplinary action on the basis of an employee’s refusal to provide evidence. An employer must also be aware of privacy issues when collecting evidence of vaccinations.
Employee’s Refusal to be 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 repeated lawful and reasonable direction requiring vaccination. However, again, this must be assessed on a case by case basis.