Can employers refuse to employ unvaccinated people?

With many states coming out of lockdown and businesses starting to open for business, numerous Employers are asking the question, can a business refuse to employ people who choose not to receive a covid vaccination?

Unfortunately, the answer is not a simple yes or no. Numerous considerations need to be taken into account and the mandate for an Employee to be vaccinated will generally be assessed on a case-by-case basis.

Workplace Rights and Obligations

The Fair Work Ombudsman and Safe Work Australia has provided guidance for Employers and Employees:
• Employers cannot presume it is lawful to direct employees to be vaccinated.
• In the event Employers direct employees to be vaccinated it must be under lawful and reasonable direction which is assessed on a case-by-case basis having regard to workplace, health and safety laws
• Employees who are vaccinated will most likely not be able to refuse to attend work because other Employees are not vaccinated.

Lawful and Reasonable Direction

In determining whether a direction is lawful it will need to comply with the following;

1. Employment Contract;
2. Award or Agreement;
3. Federal or State and Territory laws including public health orders

The Fair Work Ombudsman has identified a range of factors that are worth considering when assessing whether an employee should be vaccinated;

1. The nature of the workplace. For example, is social distancing possible in the workplace, is the business providing an essential service, do employees work within the public domain etc.
2. The workplace location and whether there is community transmission occurring. Is the risk of transmission high (eg. Delta variant)? How many community cases are there?;
3. The effectiveness of the vaccine in reducing transmission of COVID-19;
4. The health and safety obligations of the workplace;
5. Whether the employee has a medical exemption from being vaccinated or other legitimate reason;
6. The availability of vaccines.

Case by Case Assessment

When undertaking a case-by-case assessment on deciding whether the Employer can mandate an Employee to be vaccinated, the Fair Work Ombudsman has divided 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).

In relation to Tier 1 and 2, the Employer will most likely have a reasonable direction, given employees in these two tiers are in contact with people who are more susceptible to the risk of contracting COVID-19. Consequently, the Employer is attempting to protect the wider community.

In relation to Tier 3, the Fair Work Ombudsman has indicated that where community transmission is not occurring in the vicinity of the workplace, a direction for employees to receive a COVID-19 vaccination is unlikely to be reasonable outside of a public health order. However, if community transmission is occurring near or around the workplace and the workplace remains open during lockdown, a direction for employees to receive a vaccination will most likely be reasonable.

An employee who falls under Tier 4, mandating a COVID-19 vaccination will most likely be viewed us unreasonable.

What happens if an employee refuses to receive a covid vaccination?

If an employee refuses to get vaccinated, the employer’s first response should be asking their employee why they are refusing a vaccination.

If there is a reasonable excuse, such as a medical contra-indication or religious exemption, the employer should consider whether there may be alternative work arrangements for the employee (such as working form home). This would be advisable to reduce the risk of community transmission.

Disciplinary Action

If there is no reasonable excuse, disciplinary action may be available, including termination of employment. However, termination of employment will be assessed on whether the employee has breached:

1. Legislation; or
2. A lawful or reasonable direction requiring COVID-19 vaccinations.
3. Whether the employee can be redeployed to any other roles.

The employer is to have regard to their obligations under the following to identify if disciplinary action is available:

• enterprise agreement or other registered agreement
• award
• employment contract
• workplace policy
• state or territory public health order.

Additionally, attention will need to be given to the terms of the employment contract, specifically with respect to COVID-19 vaccinations, and if the term adheres to anti-discrimination laws. This will ensure the employer is protected against liability of any anti-discrimination actions taken by the employee.

Still have questions about workers receiving covid vaccinations?

The requirement for employees to be vaccinated during or before their employment is a new and emerging area for the employment and legal industry. If you are uncertain of your rights, including compliance with privacy laws in requesting vaccination status, Contact the HR experts at BetterHR on 1300 659 563 or visit us online at: www.betterhr.com.au