Employers and employees are now seeking clarity on their rights and obligations in the workplace as the COVID-19 vaccination becomes available. According to Fair Work Australia, the majority of employers should assume that they won’t be able to require their employees to be vaccinated with no laws or public health orders currently in place.
Whether an employer can require employers to be vaccinated is highly fact dependent. Employers should consider whether vaccinations are an inherent part of an employee’s role, as well as the following factors:
- Is the direction to be vaccinated lawful and reasonable?
- Does a specific law, enterprise agreement or employment contract mandate vaccination?
- Does the employee work with vulnerable others such as the elderly?
- If people refuse, the vaccine how will they be dealt with?
- What other control measures are in place to reduce the risks of COVID-19?
- Are there alternative working arrangements that can be made?
The factors surrounding mandated vaccinations, can also raise a number of legal issues including:
- Privacy – Australian Law regulates the collection, use and storage and handling of personal health information. Employers must ensure they are complying with the relevant laws.
- Discrimination – Australian anti-discrimination laws prohibit discrimination on protected characteristics. For Example, disability, pregnancy and religious beliefs.
- Unfair dismissal claims – An employer may take disciplinary action against an employee refusing the vaccine, only if the refusal is in breach of a specific law or reasonable direction.
A safe and effective coronavirus vaccination is only one part of keeping Australian’s safe. Employers should ensure all reasonably practicable control measures are in place before considering a mandated vaccination. Employers should also be aware that:
- It is unlikely that WHS laws require businesses to ask customers and visitors for proof of vaccination before entering premises.
- It is unlikely an employee could refuse to attend the workplace because another employee is not vaccinated.
Seeking legal advice to evaluate the implications vaccines may have on a business and their employees is highly recommended.
The FairWork Ombudsman website has more information
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