No Jab = No Job? Can you have one without the other?

March 11, 2021

It’s here! The COVID-19 vaccine (Vaccine) rollout commenced on Monday, 22 February 2021 and has both employers and employees wondering whether they can require or would be required to vaccinate. The Australian Government has released a national vaccine rollout strategy (Strategy) across Australia in response to COVID-19 with a current aim for 95% uptake rate.

The Strategy is broken down into 3 phases. Phase 1A has commenced and prioritises the following sectors:

Quarantine and Border Workers;
Frontline health care workers;
Residential aged care and disability care workers; and
Aged care and disability care residents.

The Vaccine offers benefits and greater protection for the general public from COVID-19. However, with some interest groups rejecting the Vaccine and raising concerns about the Vaccine, employers and employees face a number of critical legal questions.

Can you require or be required to be vaccinated for employment?

The short answer for a majority of employers is no. The current Government policy promotes voluntary vaccination, however, it aims to have as many Australians vaccinated as possible. There are no current laws or public health orders that enable employers to make a directive to mandate vaccination of their employees.

When considering whether you can require your employees to vaccinate, employers should take into account:

Whether your enterprise agreement, employment contract or any other agreement provides for a vaccination requirement; and
Whether the direction to vaccinate would be lawful and reasonable.

What is a lawful and reasonable direction?

Whether an employer’s direction to vaccinate is lawful and reasonable will depend on a number of factors and should be considered on a case by case basis. An employer’s directive must be compliant with any contractual agreement, applicable modern award and governing legislation. Employers should also be mindful that they hold a duty to minimise the risk of COVID-19 exposure in the workplace under the Work Health and Safety Act 2011 (Cth).

Employees have a legal obligation to meet lawful and reasonable directions issued by their employer. Failure to comply with such directions may result in disciplinary action, and in some cases the termination of employment.

In a recent decision in the Fair Work Commission, Glover v Ozcare [2021] FWC 231, Commissioner Hunt provided guidance stating that a workplace, in determining to make vaccination an employment requirement, must consider the employees’ circumstances and whether the direction is “lawful and reasonable.” Commissioner Hunt stated that an employee’s refusal to vaccinate may result in termination, regardless of conscientious objections, religious beliefs or medical history. This decision provides the groundwork that whether an employer’s vaccination direction is ‘lawful and reasonable’ must be considered on a case by case basis.

Commissioner Hunt also opined about the circumstances where other transmission preventive measures, such as social distancing, are not available. He leaned on the example of young children taking photos with Santa Claus at a local shopping centre, stating that it may be “required by their employer to be vaccinated at least against influenza, and if a vaccination for COVID-19 is available, that too.”

What if my employee says “No”?

It is foreseeable that not all employees will accept the Vaccine. Fair Work Australia has prescribed the following steps that employers should consider:

First step, seek out the reasons for the refusal of the vaccination;
Second step, if a legitimate reason is provided, whether other options are available;
Third step, whether disciplinary action is applicable; and
Fourth step, assessment of contractual agreement.

If your employee has been vaccinated, you may, as an employer, request evidence of their vaccination. However, this request must also be lawful and reasonable. Employers must be cautious as it is likely to give rise to privacy issues. Fair Work Australia has also provided a best practice guide for workplace privacy here.

What if an employee refuses to attend work due to a co-worker’s refusal of the Vaccination?

Again, an employer must give any directions to a reluctant employee, in a lawful and reasonable manner.

Can you collect an employee’s health information in relation to their COVID-19 vaccination?

An employer may collect vaccination information from employees in certain circumstances as regulated by the Privacy Act 1988 (Cth).

An employee’s vaccination information should be obtained only if the employee provides consent to the disclosure and if it is reasonably necessary for the employer’s functions and activities. If the information is collected, employers must inform the employees about how their information will be handled. The Office of the Australian Information Commissioner has published COVID-19 specific privacy obligations here.

To collect vaccination information from your employee, it must be permitted under Australian Privacy Principle (APP) 3.

COVID-19 Discrimination

In circumstances where there is no Government mandate to vaccinate, there is a potential that employees may face health discrimination in the course of their employment. Employers must abide by their obligations and responsibilities under anti-discrimination laws, when approaching vaccinated and unvaccinated employees.

Where to from here?

There remains the possibility that the Federal or State Governments may mandate or release public health orders to mandate the Vaccine. Currently, whether it is lawful and reasonable for an employer to give a direction to employees to vaccine, must be considered on a case by case basis in relation to the circumstances of the employee, the nature of work being performed by the employee, the industry and the terms of any employment contracts, an applicable award or enterprise agreements.

If you need further information or assistance regarding the Vaccine and how this affects your employment relationship, contact Gavin Parsons of Gavin Parsons and Associates on (02) 9262 4471 or at gavin@gpalaw.com.au.