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.
Recently in Victoria on 7 October 2021, the Acting Chief Health Officer Professor Benjamin Cowie introduced the COVID-19 Mandatory Vaccination (Workers) Directions under Section 200 of the Public Health and Wellbeing Act 2008 (Vic). As a result, there are now a number of workers who are required to be vaccinated in order to work or continue to work outside of their homes. Workers include employees, contractors, volunteers and students on placement.
The following Authorised Workers must be vaccinated in accordance with the timelines set out in the Public Health Order: –
- Accommodation workers
- Agriculture and forestry workers
- Airport workers
- Ancillary, support and welfare workers
- Authorised officers
- Care workers
- Community workers
- Creative arts workers
- Custodial workers
- Emergency service workers
- Entertainment and function workers
- Funeral workers
- Higher education workers
- Justice service centre workers
- Marriage celebrants
- Manufacturing workers
- Meat and seafood processing workers
- Media and film production workers
- Mining workers
- Physical recreation workers
- Ports and freight workers
- Professional sports, high-performance sports or racing person
- Professional services workers
- Public sector employees
- Real estate workers
- Religious workers
- Repair and maintenance workers
- Retail workers
- Science and technology workers
- Social and community service workers
- Transport workers
- Utilities and urban workers
- Veterinary and pet/animal care workers
To find out whether you are an Authorised Worker, see more information from the Victorian Government website here.
If you are an Authorised Worker, you must comply with the timeline directions under the Public Health Order. From 15 October 2021, in order to work at a work premises that is not your home, you will need to provide evidence to your employer that: –
- You have received your first dose of the COVID-19 vaccine; or
- You have made a booking to receive your first dose by 22 October 2021; or
- You have an authorised medical exemption as evidenced by a medical practitioner.
Residential aged care workers, construction site workers, those working in the healthcare setting, and workers at school, childcare and early education services are also required to be vaccinated, however each of these sectors have different timelines. These sectors have had all had previous advise specific to their industry and are directed as follows: –
| Residential age care workers | Currently, in order to work you must: –
· Have been fully vaccinated; or · Have received first dose and have a booking to receive second dose by 15 November 2021; or · Have an medical exemption as evidenced by authorised medical practitioner. |
| Construction site worker | Currently, in order to work you must: –
· Have been fully vaccinated; or · Have received first dose; or · Have an medical exemption as evidenced by authorised medical practitioner. |
| Healthcare | From 15 October 2021, in order to work you must: –
· Have been fully vaccinated; or · Have booked in to receive first dose by 29 October 2021; or · Have an medical exemption as evidenced by authorised medical practitioner. |
| School, childcare and early education services | From 18 October 2021, in order to work you must: –
· Have been fully vaccinated; or · Have received your first dose; or · Have a booking to receive your first dose by 25 October 2021; or · Have an medical exemption as evidenced by authorised medical practitioner. |
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.
