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Can employers require employees to be vaccinated against Coronavirus?

For employers, the introduction of the Coronavirus vaccine raises some potential issues for workplaces, both from a people management perspective as well as from a well being duty of care. The Fair Work Ombudsman and Safe Work Australia have published guidance in response to employer questions about Coronavirus vaccinations and the workplace. The information provided in this article is sourced, cited and collated from both of those sources.


The focus of this article is to assist employers to anticipate and prepare for some of the likely issues which will arise in workplaces when the vaccination is rolled out. From a human resources management perspective, we may see the vaccination debate unfold further in the coming weeks and months as issues such as those outlined in this article are tested.


Evidently, most businesses would like an assurance that they have done everything within their control to manage any outbreak of COVID-19. Businesses will also be questioning where their duty of care obligations stop in relation to the safety of all of their workers and customers.


We have seen in the media already that this is a controversial matter. The Australian Government’s policy is that receiving a vaccination is voluntary, although it aims to have as many Australians vaccinated as possible. There are currently no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated 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). If public health orders are made, employers and workers will need to comply with any orders that apply to them. Readers may also refer to the List of enforceable government directions during coronavirus, which shows that no public health orders requiring Coronavirus vaccination have been made at the time of publication.


Whether we like it or not, this means that every individual is able to make the decision for themselves as to whether they are vaccinated. Employers need to take care that they are not coercing, or allowing other workers to coerce others into feeling pressured to be vaccinated. This is where I feel that sharing the type of information contained in this article in the early stages would be very valuable within workplaces.


Can an employer require an employee to be vaccinated (for Coronavirus)?


The current advice is that the majority of employers should assume that they won’t be able to require their employees to be vaccinated against the virus. Any employer who is considering making Coronavirus mandatory in their workplace should seek specific advice around this.


There are limited circumstances where an employer may require their employees to be vaccinated. Relevant factors an employer should consider will 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; and

  • 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).


But what about my duty of care as an employer, I hear you say? What about my ability to provide a lawful and reasonable direction so that all my workers and customers are protected? Well, we know from the aforementioned information that is it not currently legislated (and therefore is not lawful unless prescribed as such) so is it reasonable for an employer to direct their employees to be vaccinated against Coronavirus? The Fair Work Ombudsman and Safe Work Australia have stated that on its own...no, the Coronavirus pandemic doesn’t automatically make it reasonable.


That brings me to think about the cases of outbreak in workplaces, and according to the information and media reports on this, it would appear that the majority of outbreaks are not occurring in workplaces; therefore one might say that the current control measures are adequate.


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 (for example, employees working in hotel quarantine or border control), or

  • employees have close contact with people who are most vulnerable to the health impacts of Coronavirus infection (for example, employees working in health care or aged care).

The complexity of this situation is that it is a work health and safety and workplace employment issue but it is also overlaid with that feeling of being a human rights issue. Certainly, workplace issues such as anti-discrimination laws generally prohibit discrimination against employees in the workplace based on protected characteristics. Protected characteristics that are likely to be relevant in considering whether to require vaccination include disability, pregnancy or religious beliefs.


Before requesting or requiring employees to be vaccinated, employers would need to consider:


  • Commonwealth, state or territory discrimination laws;

  • Factual evidence arising from the need to vaccinate in any given workplace;

  • General protections provisions under the Fair Work Act; and

  • Human Rights (of which we may find we hear more of in relation to this topic)

Can an employer require a prospective (new) employee to be vaccinated before starting work?


The Fair Work Ombudsman has stated on its website that an employer may be able to require a prospective employee to be vaccinated against Coronavirus. However, it is the view of iFreelance that employers should first consider how equitable this is among new and existing staff, and what actual value would be gained from pursuing this at the outset of the employment relationship.


Can an employer require an employee to provide evidence that they have been vaccinated?


If an employer has provided a lawful and reasonable direction to be vaccinated for Coronavirus and an employee complies, the employer could also ask the employee to provide evidence of their vaccination.


Where an employer wants to direct an employee to provide evidence, the employer should make sure that the requirement to provide evidence is also lawful and reasonable. Directing an employee to provide evidence of their vaccination might also raise privacy issues.


Can an employee refuse to attend the workplace because a co-worker isn’t vaccinated against Coronavirus?


Assuming that there is no public health order preventing attendance, it is unlikely that an employee could refuse to attend their workplace where a co-worker isn’t vaccinated, because:

  • vaccination is not mandatory and ultimately it falls to personal choice;

  • most workplaces won’t be able to require their employees to be vaccinated; and

  • the co-worker may have a legitimate and private reason not to be vaccinated (for example, a medical reason).

In any event, there is currently insufficient medical evidence about the impact of COVID-19 vaccines on transmission of the virus; which means that a worker could get COVID-19 even if they are vaccinated.


If an employee refuses to attend the workplace because a co-worker isn’t vaccinated, their employer should ascertain the cause of their concern. An employer can direct them to attend the workplace if the direction is lawful and reasonable, taking into consideration the reasons of the concern. If it is unclear whether a direction or an employee’s refusal is reasonable, employers should consider seeking human resources advice before invoking a direction which would ultimately take a disciplinary path if not followed.


A more proactive way of managing these types of situations is to ensure that the workplace allows for employees to voice their concerns about the safety of the workplace (including relating to Coronavirus and the effectiveness of the control measures in place) and encouraging employees to raise their concerns with their employer as soon as possible. Employers could also share information about the steps they’ve taken in the business to ensure a safe workplace.


Actions employers can take now


If the introduction of the vaccine may cause concern in your workplace, you could consider:


  • undertaking a risk assessment for your business;

  • consider the available control measures and how they will help manage the risks of COVID-19, including any available vaccines and evidence available;

  • consult with workers and Health & Safety Representatives about COVID-19 and relevant control measures, including COVID-19 vaccines; and

  • determine what control measures are reasonably practicable for you to implement in your workplace.

Summary


The vaccine is only one part of keeping the Australian community safe and healthy. For employers to meet their duty of care of minimizing the risk of exposure to COVID-19 in their workplaces, they must continue to apply all reasonably practicable COVID-19 control measures including physical distancing (or the wearing of face masks where this is not possible), good hygiene and regular cleaning, sanitizing and maintenance. A key part of keeping the workplace safe is also ensuring that employees do not attend work if they are unwell. Employers evidently also need to comply with any public health orders made by state and territory governments that may apply generally or to specific workplaces.


Especially in North Queensland, which has to date been so unaffected by community transmission, now would be a good time for employers to revisit their Coronavirus policies and procedures and ensure that all relevant control measures are up to date ahead of the vaccination roll out. Employers should also encourage employees to raise any concerns they may have around the perceived effectiveness of the control measures in place.


The Fair Work Ombudsman has set up a Coronavirus Hotline. If you have an urgent enquiry about your workplace obligations, FWO can be contacted on 13 13 94 and select the prompt for the Coronavirus hotline.


Worksafe QLD has established a national Coronavirus health information line on 1800 020 080.


iFreelance can also assist with people management issues around this topic.




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