As COVID-19 vaccines become available in Australia, many workplaces are wondering whether employers can require their workers to have the COVID-19 vaccination.
What are the rights of both employees and employers when it comes to COVID-19 vaccinations?
According to the Fair Work Ombudsman, there are currently no laws or public health orders in Australia that specifically allow employers to make COVID-19 vaccinations compulsory for their workforce.
This means that, generally, employers cannot require their employees to get the COVID-19 vaccination. The only way an employee can insist their employees get vaccinated is if there is a directive from the Government, if it is deemed lawful and reasonable to do so in the circumstances (e.g. for the health and safety of patients or others), or where a specific law, enterprise agreement or employment agreement requires it.
The Fair Work Ombudsman and Safe Work Australia have provided some further guidance on the issue of COVID-19 vaccinations in the workplace. You can read the Fair Work Ombudsman’s latest information here.
How about employees who work in high-risk sectors?
Healthcare workers, aged care facilities workers, disability care workers and those who work in hotel quarantine and border control, all work in exposed sectors which put them or their patients at high-risk. For these workers, it is possible that the Government will issue Public Health Orders that will mandate that COVID-19 vaccinations are compulsory and employers will need to ensure all staff are vaccinated.
What happens if a worker refuses to be vaccinated?
If the employer has legal grounds on which to insist that an employee gets vaccinated and the employee has no valid justification for refusing, the refusal may warrant disciplinary action being taken. For example, if an employee works in a high-risk sector where there is a government mandate that all staff must be vaccinated, it may not be possible for the employee to continue working without having the COVID-19 vaccination.
However, there may be instances where there is a legitimate reason why an employee refuses to be vaccinated against COVID-19. For example, they may not be able to be vaccinated on medical grounds or they may hold religious beliefs that preclude them from being vaccinated. In these cases, taking disciplinary action against the employee may be in breach of anti-discrimination laws.
In some instances, disciplinary action, including termination, may be appropriate where an employee is refusing to have a COVID-19 vaccination, but we recommend you seek legal advice before terminating an employee in these circumstances.
If you are an employer and need some assistance with employment law or HR, we are here to help. Call one of our employment lawyers today on 03 5434 6666.