Employment and Workplace Relations update: What employers need to know about requiring employees to have a COVID-19 vaccine

Employers and employees are looking for clarity on their workplace rights and obligations with regard to COVID-19 vaccination.

On Friday 6 August, the National Cabinet confirmed Australia’s policy remains that vaccines should be voluntary and that an employer can only mandate that an employee be vaccinated through a lawful and reasonable direction in the absence of a state or territory public health order or a requirement in an employment contract or industrial instrument.

Clarification from the National Cabinet follows an announcement by SPC Ardmona mandating for all its employees to be vaccinated by November 2021 and the National Cabinet’s decision mandating that all residential aged-care workers receive at least the first dose of a COVID-19 vaccine by mid-September 2021.

While the Fair Work Commission (FWC) provides useful information and guidance on common questions about COVID-19 vaccination and the workplace, provided below is an explanation for employers on the current requirements relating to employees and the COVID-19 vaccination.

When can an employer require an employee to be vaccinated?

An employer may require their employees to be vaccinated if:

• their Enterprise Agreement or employment agreement has a clause that requires vaccination; or
• it would be a lawful and reasonable direction if the employer directs that employee to be vaccinated.

Employers should always remember that regardless of any state or territory legal requirement, or agreement allowing employers to require an employee to be vaccinated, they must consider the applicable anti-discrimination law. Specifically, to take care when a person has an illness, injury or condition that may prevent them from being able to be vaccinated safely.

When is it a lawful and reasonable direction?

Employers can generally direct their employees to undertake an action such as getting vaccinated if that direction is lawful and reasonable. Whether a direction is lawful and reasonable is assessed on a case-by-case basis.

A lawful direction is that which complies with contractual agreements, national, state or territory laws such as an anti-discrimination or public health law.

A reasonable direction considers a number of factors such as whether that direction is necessary to minimise a risk to the health of the workforce or the employer’s occupational health and safety obligations.

While the risks of COVID-19 are clear, employers need to take care when using this as a reason to direct an employee to be vaccinated. Before directing an employee to be vaccinated, employers need to consider factors such as:

• whether that employee is likely to interact with people that have a high-risk of being infected with COVID-19 such as hotel quarantine workers; or
• whether their employee has close contact with people who are vulnerable to the impact of COVID-19 such as aged care workers.

If an employer provides a lawful and reasonable direction to be vaccinated, they can also ask that employee to provide evidence that they have been vaccinated such as a medical certificate.

Can an employee refuse to be vaccinated?

If an employee refuses to be vaccinated after laws and agreements requiring vaccination are in effect, or a lawful and reasonable direction has been given, an employer should ask that employee to provide a reason why.

Some employees may have a legitimate reason to not be vaccinated such as an existing medical reason. If that happens, employers can ask that employee to provide evidence.

Where there is a legitimate reason, the employer should consider alternative working arrangements for the employee such as working from home or necessary workplace arrangements if they cannot work from home.

A recent decision in relation to the flu vaccine in Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156, the FWC decided that there was a valid reason to dismiss an employee for not vaccinating against the flu or for not providing a satisfactory medical exemption from vaccination. The Deputy President empasised that the decision should not be applied broadly for COVID-19 vaccines but it does provide a recent example of how current laws apply in relation to requiring employees to be vaccinated.

Disciplinary action for refusal

If the employee refuses to comply with an applicable law or lawful and reasonable direction, the employer may be able to take disciplinary action against that employee.

Employee refusing to attend work because of an unvaccinated co-worker

This is a topic that is likely to be tested in the FWC if it is not clarified through legislation.

Currently, an employee is unlikely to be able to refuse to attend work. If they do unreasonably refuse to attend work, the employer can direct them to attend work or face disciplinary action if they are refusing that lawful and reasonable direction.

Takeaways for employers

An employer can require an employee to have the COVID-19 vaccine if they want to start or continue working with them only if that direction is lawful
and reasonable. Employees may refuse that direction for medical, religious or political grounds. Refusing a direction may warrant disciplinary action up to termination of employment. However, employers do not have an automatic right to make such a direction or take that disciplinary action against employees who do not comply with the direction. They must carefully consider each case to avoid significant legal risk.

More information

For more information on the current requirements relating to employees and the COVID-19 vaccination, or for advice, please contact a member of our Employment and Workplace Relations team:

Author

This Employment and Workplace Relations update was authored by Nadeem Hekmat, Associate.

Note: This update is a guide only and is not intended to constitute legal advice.