Vaccinations in the workplace – what employers need to know

The Australian government recently began the nationwide rollout of the COVID-19 vaccine. Participation has been a topic of considerable discussion, leaving employers grappling with the question of whether they can implement mandatory vaccination policies within the workplace.

The Federal Government has announced the vaccine will not be made mandatory, providing employers with no legislative or regulatory requirements to either permit or prohibit employees to receive the vaccine.

Any grounds for directing employees to be vaccinated will be addressed at a State or Territory level. Even then, it is not available to most employers, they are very conditional, depending on the level of risk to the working environment.

Directing your employees to be vaccinated has to be a ‘lawful’ and ‘reasonable’ action, considering the above, it will likely be very hard for a business to request staff to be vaccinated without legislation or a public health direction.

Despite the fact the vaccine won’t be mandatory, or that it may be difficult to direct employees to be vaccinated, employers must remain focused on their duty of care and implement best practice in terms of workplace health and safety.

Following existing control measures such as physical distancing, routine cleaning, the use of hand-sanitiser and personal protective equipment, may efficiently satisfy employers health and safety obligations without requiring employees to get vaccinated.

With immunisation remaining voluntary, for most businesses, whether you can make an employee get vaccinated is a grey area, which is subject to change.

Currently, there are no legislative grounds however, State and Territory regulations may require employees undertaking duties in specific industries receive up-to-date vaccinations.

To establish whether the direction is lawful an employer needs to consider:

• Is there a credible/high risk of infection in the workplace?
• Does the employee perform duties in an environment prone to spread of infection?
• Can other measures be implemented by the employer to successfully mitigate the risk of infection spread?
• Is the direction consistent with federal, state, or territory requirements?
• Does the employee have a valid medical reason, genuine political or religious belief for refusing the vaccine?

In the absence of a public health policy or legislation requiring a vaccination, a direction to be vaccinated is unlikely to be considered reasonable and an employee could lawfully refuse.

If the employee’s refusal is justified, the employer must consider whether the employee could:

• Continue their duties safely without being vaccinated
• Perform alternative duties
• Work in a lower risk location
• Follow alternative control measures to reduce infection spread.

It is recommended employers implement a capability process to assess if the employee’s capacity to perform their role is affected. This approach will assist determine the valid reason for refusal from the need to vaccinate and avoid a general protections risk.

If the employee’s refusal is based on personal preference as opposed to medical reasons and their duties or location of work is high risk (e.g. frontline healthcare worker), the business may consider disciplinary action for failure to comply with a reasonable management direction.

However, in the absence of a health order and/or other authority, it is likely to be difficult for an employer to defend an unfair dismissal claim should the action result in termination of employment.

At present, employees are unable to refuse to attend their workplace where a co-worker isn’t vaccinated, because:

• The vaccine is not mandatory, and most workplaces won’t be able to require their employees to be vaccinated
• There may be a legitimate reason for their co-worker not to be vaccinated.

Employers should consider if directing the employee to attend the workplace is lawful and reasonable – this varies depending on circumstances including the companies work health and safety obligations. If it is unclear whether a direction or an employee’s refusal is reasonable, employers should consider seeking legal advice prior to any disciplinary action.

Encourage communication during the process of returning to work, by urging employees to express concerns regarding either the vaccine and/or the safety of the workplace. Whilst using these conversations as a time to share information with your team on the steps the business is initiating to ensure a safe workplace.

Implementing a COVID-19 vaccination policy is a good strategy for establishing clear workplace guidelines, procedures and policies, in addition to stating other measures the business has executed to reduce the risk of infection spread.

While the information provides high-level information and guidance, employers and employees should consider seeking legal advice regarding their specific circumstances.