How can employers introduce mandatory covid 19 vaccinations in the workplace? What can happen if an employee refuses to be vaccinated? BetterHR’s team of experts answer many commonly asked questions.
The Fair Work Ombudsman (FWO) has provided guidance for employers who are contemplating making covid vaccination mandatory in their workplaces.
As a rule of thumb, Employers can only require their employees to be vaccinated where:
- a specific federal, state or territory law requires an employee to be vaccinated for example
- The NSW government public health orders prevent quarantine workers, transportation workers and airport workers from entering the workplace or providing services if they haven’t been vaccinated.
- The Queensland government has issued directions for health service employees, hospital and health service contractors, Queensland Ambulance Service employees etc to be vaccinated.
- The South Australian Government public health direction mandates vaccination for workers within the South Australian quarantine systems including airports, medi-hotels, health-care etc
- The Western Australian Government public health directions prevent quarantine centre workers such as security personnel, cleaners, hotel staff, medical and health staff, ADF personnel and WA police from entering or remaining at a quarantine centre if they are not vaccinated.
- the requirement is permitted by an enterprise agreement, other registered agreement or employment contract
- Some employment contracts or agreements may contain terms relating to vaccinations, including COVID-19 vaccinations. Employers and employees should check to see if any terms apply to COVID-19 vaccinations (for example, a term relating only to flu vaccinations won’t apply to COVID-19 vaccinations).
- Even where a contract or an agreement has a term about coronavirus vaccinations, employers and employees should consider whether the term complies with anti-discrimination laws. A term that is contrary to anti-discrimination laws isn’t enforceable.
- it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis, considering:
- the nature their workplace by asking questions such as
- does the role require the employee to face public customers?
- Is social distancing possible?
- Does the business provide an essential service?
- the extent of community transmission of COVID-19 in the business location where the direction is to be given.
- Is there a risk of transmission of the Delta variant among employees, customers or other members of the community?
- the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant (see ATAGI statement);
- the businesses OHS obligations (find out more at Safe Work Australia);
- each employee’s circumstances, including their inherent duties and the risks associated with their work;
- whether employees have a legitimate reason for not being vaccinated (for example, a medical reason);
- vaccine availability.
When undertaking this case-by-case assessment, it may also be helpful as a general guide to divide work into 4 broad tiers:
- Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).
- Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).
- Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).
- Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).
The FWO says that a workplace might have a mix of employees, performing work in different tiers, all of which can change over time.
“The coronavirus pandemic doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus,” it says.
“An employer’s direction to vaccinate employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected with coronavirus, or giving coronavirus to a person who is particularly vulnerable to the health impacts of coronavirus.
“An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of the coronavirus.”
For employees performing Tier 3 work, it advises that:
- where no community transmission of coronavirus has occurred for some time in the area where the employer is located, a direction to employees to be vaccinated is in most cases less likely to be reasonable;
- where community transmission of coronavirus is occurring in an area, and an employer is operating a workplace in that area that needs to remain open despite a lockdown, a direction to employees to receive a vaccination is more likely to be reasonable.
“Regardless of the tier or tiers which may apply to work performed by employees, the question of whether a direction is reasonable will always be fact dependent and needs to be assessed on a case-by-case basis.
“This will require taking into account all relevant factors applicable to the workplace, the employees and the nature of the work that they perform.
What can happen if an employee refuses to be vaccinated? Can an employer discipline the employee, including terminating their employment?
The FWO has provided guidance that “an employer may be able to take disciplinary action, including termination of employment, against an employee for refusing to be vaccinated if the employee’s refusal is in breach of:
- a specific law, or
- a lawful and reasonable direction requiring vaccination.”
The initial step is for the employer to ask the employee to explain their reasons for refusing the vaccination or not wanting to get vaccinated. For example, the employee may have a medical condition that means vaccination is not recommended for the employee.
If the employee gives a legitimate reason for not being vaccinated, the employee and their employer should consider whether there are any other options available instead of vaccination. This could include alternative work arrangements.
Whether an employer can take disciplinary action will depend on the individual facts and circumstances. To work out if and how an employer can take disciplinary action, employers should consider the terms, obligations and rights under any applicable:
- enterprise agreement or other registered agreement
- award
- employment contract
- workplace policy
- state or territory public health order.
Employers don’t otherwise have the power to suspend employees without pay unless an enterprise or other registered agreement, award or employment contract allows them to. Employees have various protections against being dismissed or treated adversely in their employment. Employers should make sure that they follow a fair process and have a valid reason for termination, or they may breach unfair dismissal or adverse action laws under the Fair Work Act.”
What about prospective employees? Can an employer require them to be vaccinated before starting work?
The FWO says “An employer may be able to require a prospective employee to be vaccinated against coronavirus.
Before requiring that a prospective employee be vaccinated before starting employment, employers should consider their obligations and responsibilities carefully, for example, under general protections or anti-discrimination laws, which generally prohibit discrimination against employees in the workplace based on protected characteristics, such as disability.”
How can employers introduce mandatory covid 19 vaccinations in the workplace?
A good vaccination policy goes a long way. Before introducing the policy in the workplace, ensure you that you educate your employees on the need for the vaccine, and are able to justify why the employees need it, for example because they work in hotel quarantine of overseas travellers.
The policy should:
- Be clear on the purpose for having the policy and how it is going to be applied,
- Have clear timeframes for compliance. The timeframes should be reasonable and benchmarked,
- Have clear metrics around how the employer will validate or check compliance of the policy with employees; and
- Provide the appropriate mechanisms for the employees to access vaccination by considering any medical contraindicators, any access or supply challenges, respecting staff views.
BetterHR has created a general vaccination template available as an individual purchase or as part of the professional and platinum subscription that can be tailored for covid 19 mandatory vaccination.
Please contact your BetterHR advisor to discuss the options available to vaccinate employees in your workplace.
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By Weda Ringo, Senior Employment Relations Adviser & Employment Lawyer.
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