The Fair Work Commission states that in the current circumstances, most employers should assume that they can’t require their employees to be vaccinated against coronavirus.
While the Australian Government’s policy is that receiving a vaccination is voluntary, it aims to have as many Australians vaccinated as possible.
This article will discuss the rights and obligations of the employer as well as the employee when it comes to the issue of mandatory COVID-19 vaccination in the workplace.
Can an employer require an employee to be vaccinated?
There are constrained circumstances where an employer may require their employees to be vaccinated. Whether an employer can require their employees to be vaccinated against coronavirus is highly fact dependent, taking account of the workplace and each employee’s circumstances. Relevant factors an employer should consider include:
- 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.
The below outlines how to consider the factors mentioned:
a) Agreements or contracts relating to vaccinations
Some contracts or agreements may contain terms relating to vaccinations or coronavirus vaccinations specifically. Employers and employees should check to see if the term applies to coronavirus vaccinations.
Even where contract or an agreement term applies to coronavirus, employers and employees will need to consider whether the term complies with anti-discrimination laws. A term that is contrary to anti-discrimination laws will not be enforceable.
If in doubt, employers and employees should consider getting legal advice on these issues.
b) Lawful and reasonable directions
Employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable needs to be assessed on a case-by-case basis.
For a direction to be lawful, it needs to comply with any contract, award or agreement, and any Commonwealth, state or territory law that applies.
There are a range of factors that may be relevant when determining whether a direction is reasonable, including whether the direction is a reasonably practicable measure to eliminate or minimise risks to work health and safety under work health and safety laws.
By itself, the coronavirus pandemic doesn’t automatically make it reasonable for an employer to direct their employees to be vaccinated against coronavirus.
Some circumstances in which a direction may be more likely to be reasonable include where:
- employees interact with people with an elevated risk of being infected with coronavirus; or
- employees have close contact with people who are most vulnerable to the health impacts of coronavirus infection; and
- Work health and safety considerations are an important factor to consider in working out whether a direction is reasonable.
Can an employer require a prospective employee to be vaccinated before starting work?
Usually, an employer may be able to require a prospective employee to be vaccinated against coronavirus.
Before requiring that a prospective employee be vaccinated before starting employment, employers should consider their obligations and responsibilities carefully under general protections or anti-discrimination laws.
What happens if an employee refuses to be vaccinated?
If an employee refuses to be vaccinated, an employer should, first and foremost, ask the employee to explain their reasons for refusing the vaccination.
If the employee has provided a legitimate reason for not being vaccinated, such as medical condition, the employee and their employer should consider whether there are any other options available instead of vaccination. This could include alternative work arrangements.
Whether disciplinary action is reasonable will depend on the circumstances.
If an employee refuses a direction to be vaccinated, it’s unlikely that their employer can stand down the employee.
Additionally, employers generally don’t have the power to suspend employees without pay, unless an enterprise or other registered agreement, award or employment contract allows them to.
We encourage employers to discuss options with their employees depending on the circumstances of their individual workplace.
Can an employer take disciplinary action if an employee refuses to get 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 clear and repeated lawful and reasonable direction requiring vaccination.
Whether an employer can take disciplinary action will depend on the individual facts and circumstances.
To determine the necessity for disciplinary action, employers should consider the terms, obligations, and rights under any applicable:
- enterprise agreement or other registered agreement;
- employment contract;
- workplace policy; and
- public health order.
Employers should also consider getting legal advice in these situations.
Legislation and public health orders requiring vaccination against coronavirus
State and territory governments may make public health orders requiring the vaccination of workers, for example, in identified high-risk workplaces or industries in their state or territory.
Employers and workers need to comply with any public health orders that apply to them.
In conclusion, the issue of employers requiring their employees to get the COVID-19 vaccine still does not have a definite solution and there are a lot of grey areas.
There is no strict definition of what is considered as “lawful and reasonable” and even though the Australian Government states that it is the employer’s choice to make this decision, the Employer when making this decision should be careful and be very much aware of all laws, policies directions by the Fair Work Commission, are complied with.