The Government has released information on the rollout of COVID-19 vaccines and how businesses and employers can play their part.
Workplaces have an important role in making access to vaccines as easy as possible and the government is committed to providing all Australians with access to free, safe, and effective COVID-19 vaccines.
Employers can encourage workers to get COVID-19 vaccination and support them by doing things like:
- facilitating on-site vaccinations;
- allowing employees to get vaccinated during work time without loss of pay;
- providing workers with information from the Department of Health about vaccination and its benefits.
Can I require employees to be vaccinated?
Many employers are asking whether they are able to insist that their workers are vaccinated against COVID-19. This is where things get a bit murky.
The government aims to have as many Australians vaccinated as possible, and while employers can encourage workers to get vaccinated, receiving a vaccination is voluntary.
The Fair Work Ombudsman states that currently, “there are no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against coronavirus.”
National public health experts, e.g. the Australian Health Protection Principal Committee, have not recommended a vaccine be made mandatory in any industries.
However, some businesses may decide that in order to comply with model Work Health and Safety (WHS) laws, a vaccine is a reasonably practicable control measure to manage the workplace risks of COVID-19.
If you are contemplating requiring employees to be vaccinated against COVID-19, you will need to take your workplace and each employee’s individual circumstances into account. Assess relevant factors such as:
- whether there is a specific law (such as a state or territory public health law) requiring an employee to be vaccinated;
- whether an enterprise agreement, other registered agreement or employment contract includes a provision about requiring vaccinations;
- if no law, agreement or employment contract applies that requires vaccination, whether it would be lawful and reasonable for you to require that your employees get vaccinated.
Additional considerations could include whether employees have a legitimate reason for not being vaccinated (e.g. an existing medical condition), and how protections for employees under anti-discrimination laws may apply.
The best course of action is to take a collaborative approach with employees when discussing, planning for, and facilitating COVID-19 vaccinations at your workplace.
Can I fire someone for not getting vaccinated?
Employers and employees may agree to a negotiated end of employment, but individual dismissals for not being vaccinated may not be justifiable in most cases, based on current circumstances.
There are currently some employment contracts that contain a requirement for employees to be vaccinated against other viruses, e.g. influenza, and some companies in certain high-risk industries have policies that require vaccination for employees.
The Fair Work Commission has heard a number of unfair dismissal cases from employees who refused to be vaccinated and were subsequently dismissed because of it, but the commission has rejected these unfair dismissal claims.
This may provide some case law precedent for requiring COVID-19 vaccination, however, this is so far untested.
Can I require vaccination as a condition for a new employee?
In most circumstances, an employer may be able to require that a new employee be vaccinated against COVID-19 before they start.
Be sure to carefully consider your obligations and responsibilities under general protections and anti-discrimination laws before making this requirement.
We recommend getting on the front foot and to start talking to your staff as soon as possible about COVID-19 vaccinations.
Read the information on the government websites and think about where your business and workers fit in the vaccine rollout. Share information with your team members.
Make vaccination as easy as possible for your people.
However, in most circumstances, you won't be able to force anyone to be vaccinated. A collaborative, supportive approach is the best way, for now. Remember that all negotiations with employees about COVID-19 vaccination must be fair and reasonable.
If you are considering making COVID-19 vaccinations mandatory in your workplace, you should obtain professional advice before doing so. MyHR can help, so please get in touch.