Barton Deakin Brief: Vaccine Rollout in Australian Workplaces

Date: Feb 2021

Vaccine Rollout in Australian Workplaces

19 February 2021

Overview

Guidelines for vaccine rollout of workplaces have been released today by the Fair Work Ombudsman (FWO) and Safe Work Australia (SWA). The advice is that most employers cannot require employees to be vaccinated. Similarly, employees cannot refuse to attend the workplace on the basis of another employee being unvaccinated. Employers also have a duty to eliminate or minimise risk of COVID-19 exposure in the workplace and must do so under work health and safety laws in line with the release of the vaccine. State and Territory government can issue public health orders requiring workers to be vaccinated in certain workplaces, however none have been issued yet.

If employers are considering a mandatory vaccination program or operate in a COVID-19 high risk environment it is recommended they obtain legal advice. In fact, in all cases where the guidelines are unclear then the government recommendation is for companies to seek their own legal advice.

Employer Obligations

Under the work health and safety laws, the employer has a duty to eliminate or minimise the risk of exposure of COVID-19 in the workplace. To reduce risks, employers must undertake a risk assessment of their business and (through consulting health safety representatives) determine control measures in the workplace.
If the workplace is subject to a mandatory vaccination of its workers under public health orders issued from state and territory governments then it must legally comply.
Workplaces cannot require customers or visitors to prove vaccination on entry however they may require this as a condition of entry – seek legal advice if you are considering this an option.

Advice on Mandatory Workplace Vaccine Programs

Mandatory vaccination will not apply for most workplaces however there are three circumstances in which employers can require employees to get a vaccination, including:

  1. If a specific law (state, territory or federal) requires an employee to be vaccinated.
  2. If an enterprise agreement, other agreement or employment contract includes a provision about requiring vaccination. This must comply with anti-discrimination laws.
  3. If it is lawful and reasonable for them to direct their employees to be vaccinated.

To expand on the third circumstance, employers can direct workers to get a vaccine if it does not violate any laws (such as anti-discrimination laws) and if it is considered reasonable. For a direction of an employee to be vaccinated to be lawful, it must comply with the commonwealth, state and territory discrimination laws and the protections under the Fair Work Act. The mandate for an employee to be vaccinated is considered reasonable in certain circumstances. It may be considered reasonable to direct vaccinations if yours is a workplace where employees interact with people with a high risk of being infected with coronavirus. Another reasonable circumstance is if employees are in contact with people who are vulnerable to the impacts of coronavirus.

Prospective employees may be directed to get vaccinated in line with general protections and state, territory and commonwealth discrimination laws.

In all cases where employers are directing workers to be vaccinated, it is recommended that independent legal advice is sought.

Employee Rights to Refuse Vaccination

If an employee refuses vaccination, the employer may ask them to explain the reason for refusal. If there is a legitimate reason for not being vaccinated (i.e. an existing medical condition) then other safe alternatives should be considered for the employee.

The employer can ask of the employee 1) evidence of vaccination or 2) evidence of why they cannot be vaccinated. However, the employer must do so in a way that is lawful and reasonable. It is recommended that employers seek legal advice in asking for evidence as there may be resulting privacy issues.

Employees do have the right to refuse and termination of employment is unlikely an available option as is the suspension of work without pay.

For more information
Minister’s Media Release
Fair Work Ombudsman Guidelines
Safe Work Australia Guidelines

For more information, contact David Alexander on +61 457 400 524, Grahame Morris on +61 411 222 680, Tahlia Robertson on +61 438 259 671, Cheryl Cartwright on +61 419 996 066, or Jack de Hennin on +61 424 828 127.


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